Can a court probation officer work part-time for a private for-profit drivers' intervention program that takes court referrals?

Currency note

This opinion was issued in 2002 and applies Ohio Ethics Law (R.C. Chapter 102) on the judicial-conduct side of the Board's advisory authority; the Board flagged it as a "Former CJC Opinion" superseded in part by the Ohio Code of Judicial Conduct effective March 1, 2009. The statutes it construes may also have been amended since 2002. Treat this page as historical context, not current guidance. Verify against current rules and statutes before relying on any specific requirement mentioned here.

Plain-English summary

The Board addressed whether a full-time municipal-court probation officer could work part-time for a private for-profit company that runs a drivers' intervention program (DIP) for defendants the court sentenced to attend such a program. The Board concluded that R.C. 102.03(E) prohibits the officer from soliciting or accepting that employment, because the private job is a thing of value that manifests a substantial and improper influence on the officer's public duties: it is more than de minimis, and the company is interested in receiving the court's referrals.

The Board explained the conflict in concrete terms. A probation officer who also works for a DIP could steer defendants to the employer's program to keep the program full and protect the side job, and the same officer would be monitoring those defendants' probation while supplying the intervention services they need to complete it. The Board also held that R.C. 102.03(D) bars the officer from using the authority or influence of the court job to secure the private employment; promising the company court referrals would be a misuse of office. The Board added that the officer is not categorically barred: if the judge determines the officer can withdraw from all probation duties involving DIP-sentenced defendants and from any role in informing or helping a defendant choose a program, the employment is not prohibited. Whether withdrawal is workable is for the judge to decide based on the duties and circumstances, with the focus on the fair and impartial administration of justice rather than the company's or the employee's needs.

Common questions

Q: Can a court probation officer moonlight for a private drivers' intervention program?

A: Not without judicial action. The opinion concluded that R.C. 102.03(E) prohibits the employment because it manifests a substantial and improper influence on the officer's duties, unless the judge allows the officer to withdraw from all duties involving defendants sentenced to attend a program.

Q: Why is the side job treated as an "improper influence"?

A: The opinion reasoned that the private company is interested in receiving the court's referrals of sentenced defendants, so accepting its employment is a thing of value tied to a party interested in matters before the court.

Q: What lets the officer take the job?

A: Per the opinion, the judge must determine that the officer can withdraw from all probation duties as to DIP-sentenced defendants and have no involvement in informing or assisting any defendant in choosing a program.

Background and rules framework

The opinion applies Ohio Ethics Law, specifically R.C. 102.03(D) (no use of the authority or influence of office to secure a thing of value manifesting a substantial and improper influence on one's duties) and R.C. 102.03(E) (no soliciting or accepting such a thing of value), to a judicial employee. "Anything of value" is defined to include any promise of future employment. The Board has advisory authority over the application of Ohio Ethics Law to judges and judicial employees under R.C. 102.08.

Citations and references

Statutes:

• Ohio Rev. Code 102.03(D), (E), (F); 102.08; 1901.33; 3793.10; 4511.19; 4511.99
• Ohio Ethics Law as applied to judicial employees

Other opinions cited:

• Ohio Op. 95-4 (1995): substantial and improper influence under Ohio Ethics Law
• Ohio Ethics Commission Op. 96-004 (1996): withdrawal from a conflict

See also

• Ohio BPC Op. 1994-001: Deputy Bailiff Owning a Private Eviction Business
• Ohio BPC Op. 1998-012: Extra-Judicial Business Activity by a Full-Time Judge or Magistrate
• Ohio BPC Op. 2001-005: Court-Employed Mediator Doing Private Paid Mediation

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-02-010.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 2320, COLUMBUS, OH 43215-6104
(614) 644-5800 (888) 664-8345 FAX: (614) 644-5804
www.sconet.state.oh.us

                                       OFFICE OF SECRETARY
                                   OPINION 2002-10
                                  Issued August 9, 2002

[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.]

SYLLABUS: Ohio Ethics Law, Section 102.03(E) of the Ohio Revised Code, prohibits a
probation officer employed in a municipal court department of probation from soliciting
or accepting private employment by a for-profit company that operates a drivers’
intervention program for defendants found guilty of operating a motor vehicle while
under the influence of alcohol and sentenced by the court to attend a drivers’ intervention
program as a condition of probation, unless the municipal court judge determines that the
probation officer may withdraw from his or her duties as a probation officer with regard
to those defendants and have no involvement in informing or assisting any defendant in
choosing which drivers’ intervention program to attend. Whether a probation officer may
withdraw from his or her duties is for the municipal court judge to determine based upon
the duties, responsibilities, facts, and circumstances of both the public and private
employment. In making the determination, the judge’s concern should be the impact on
the court and what is important for the court in the fair and impartial administration of
justice, not the private business needs of the company or the private personal or financial
needs of the employee.

Ohio Ethics Law, Section 102.03(D) of the Ohio Revised Code, prohibits a probation
officer employed in a municipal court department of probation from using the authority
or influence of his or her court employment to secure private employment by a for-profit
company that operates a drivers’ intervention program for defendants found guilty of
operating a motor vehicle while under the influence of alcohol and sentenced by the court
to attend a drivers’ intervention program as a condition of probation. For instance, the
promise of court referrals of defendants to a drivers’ intervention program would be a
misuse of the probation officer’s court employment to secure private employment.

OPINION: This opinion addresses a question regarding outside private employment by
a probation officer employed in a municipal court department of probation and discusses
a judge’s responsibilities as to whether to allow such outside employment by a judicial
employee.

   Is it proper for a full-time probation officer in a municipal court
   department of probation to work part-time for a private for-profit company
   that operates a drivers’ intervention program for defendants found guilty
   of operating a motor vehicle while under the influence of alcohol?

Op. 2002-10 2

A municipal court has statutory authority to appoint probation officers and to establish a
municipal court department of probation. Ohio Rev. Code Ann. § 1901.33(A) and (B)
(West Supp. 2002). “Probation officers have all the powers of regular police officers and
shall perform any duties that are designated by the judge or judges of the court.” Ohio
Rev. Code Ann. § 1901.33(A) (West Supp. 2002).

As judicial employees, probation officers are subject to the restriction within Ohio Ethics
Law. The Board of Commissioners on Grievances and Discipline is the appropriate
entity to advise judges and judicial employees on the application of Ohio Ethics Law.
Ohio Rev. Code Ann. § § 102.01(F)(2), 102.08 (West 2002).

Operating a vehicle while under the influence of alcohol or drugs is a violation of Ohio
law. Ohio Rev. Code Ann. § 4511.19 (West Supp. 2002). Penalties for operating a
vehicle while under the influence of alcohol or drugs are established by the state
legislature. Ohio Rev. Code Ann. § 4511.99 (West Supp. 2002). A drivers’ intervention
program is one option available to judges in sentencing certain offenders.

When sentencing an offender pursuant to Section 4511.99(A)(1), a judge may suspend
the execution of the mandatory three consecutive days of imprisonment, if in lieu of the
suspended term of imprisonment, the judge places the offender on probation and requires
the offender to attend a drivers’ intervention program for three consecutive days. Ohio
Rev. Code Ann. § § 3793.10, 4511.99(A)(1) (West Supp. 2002). When sentencing an
offender pursuant to Section 4511.99(A)(2)(a), a judge may require that in addition to
serving a term of imprisonment, an offender attend a drivers’ intervention program. Ohio
Rev. Code Ann. § § 3793.10, 4511.99(A)(2)(West Supp. 2002).

A drivers’ intervention program must be certified by the director of alcohol and drug
addiction services. The program must meet state minimum standards that the director
establishes by rule.

   The rules shall include, but are not limited to, standards governing
   program course hours and content, qualifications of program personnel,
   methods of identifying and testing participants to isolate participants with
   alcohol and drug abuse problems, referral of such persons to alcohol and
   drug addiction programs, the prompt notification of courts by program
   operators of completion of the programs by persons required by courts to
   attend them, and record keeping, including methods of tracking
   participants for a reasonable time after they have left the program.

Ohio Rev. Code Ann. § 3793.10 (West Supp. 2002)

According to the request, the municipal court permits defendants to attend any of the
state certified three-day drivers’ intervention programs. (In the county in which the
municipal court is located, there are three state certified drivers’ intervention programs.)

Op. 2002-10 3

The requester states that “[t]he Probation Department handles the referrals and lets the
defendants choose which program to attend.”

The provisions of Ohio Ethics Law pertinent to this opinion are Sections 102.03 (D) and
(E) of the Ohio Revised Code.

   Section 102.03(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.

   Section 102.03(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.

Ohio Rev. Code Ann. § 102.03(D), (E) (West 2002).

Section 102.03(F) should be noted, for it is a parallel provision prohibiting
persons from giving prohibited things of value to a public official or public
employee. Section 102.03(D) is set forth below, but not addressed further herein.

   Section 102.03 (F) No person shall promise or give to a public official or
   employee 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.

Ohio Rev. Code Ann. § 102.03(F) (West 2002).

Under Section 102.03(D) and (E), a probation officer employed by the court may not use
the authority or influence of court employment to secure “anything of value” and may not
solicit or accept “anything of value” that is such a character as to manifest a “substantial
influence” and “improper influence” with respect to his or her duties as a judicial
employee. “Anything of value” is defined to include “any promise of future
employment.” Ohio Rev. Code Ann. §§ 1.03(H) (West 1994), 102.01(G) (West 2002).
If a thing of value is more than nominal or de minimis it is considered a “substantial
influence.” If a thing of value is from a party that is interested in matters before,
regulated by, or doing or seeking to do business with the court, it is considered an
“improper influence” upon a judicial officer or judicial employee. See e.g., Ohio SupCt.,
Bd of Comm’rs on Grievances and Discipline, Op. 95-4 (1995).

Part-time private employment of a court probation officer by a for-profit company that
operates a drivers’ intervention program for defendants found guilty of operating a motor
vehicle while under the influence of alcohol and sentenced by the court to attend a
drivers’ intervention program as a condition of probation is “anything of value.” The

Op. 2002-10 4

employment is a “substantial influence” because the employment is more than nominal or
de minimis. The employment is an “improper influence” because the private for-profit
company is interested in receiving referrals of defendants sentenced by the court to attend
drivers’ intervention programs.

The conflicts created by simultaneous court employment as a probation officer and
private employment with a company that has a drivers’ intervention program that accepts
referrals of defendants sentenced by the court are obvious. A court probation officer who
works part-time for a private for-profit company that operates a drivers’ intervention
program for defendants found guilty of operating a motor vehicle while under the
influence of alcohol could easily prompt defendants to choose his or her employer’s
drivers’ intervention program to ensure continued success of the employer’s program and
to foster his or her own continued employment with the company. The pressure to steer
defendants to the private employer’s drivers’ intervention program might come from the
employer or might be self-imposed, but either way there is a conflict.

A court employed probation officer who works part-time for a for-profit company that
operates a drivers’ intervention program for defendants found guilty of operating a motor
vehicle while under the influence of drugs or alcohol is in an untenable situation of
monitoring a defendant’s probation and reporting probation violations while providing
the intervention services a defendant needs to complete probation. The proposed
employment is of such a character as to manifest a substantial and improper influence on
the probation officer because it impairs independence of judgment with respect to the
probation officer’s duties and impairs the independent and impartial functioning of the
court.

Nevertheless, if a judge determines that the probation officer can withdraw from all
matters involving the probation of a defendant sentenced by the court to attend the
drivers’ intervention program, the probation officer is not prohibited from accepting the
outside public employment. The withdrawal must be from all duties as a probation
officer with regard to defendants sentenced to attend a drivers’ intervention program as a
condition of probation. The withdrawal must also remove the probation officer from any
involvement in informing or assisting any defendant in choosing which drivers’
intervention program to attend. See e.g., Ohio Ethics Commission, Op. 96-004 (1996)
(discussing withdrawal from conflict).

Whether a probation officer whose duties it is to supervise defendants on probation is
permitted to withdraw from his or her duties is for the municipal court judge to
determine. If a judge determines that a probation officer can withdraw from the public
duties to accept the private employment without conflict, there are other considerations.
For example, the probation officer should not use court time, facilities, personnel, or
resources in conducting his or her private employment and should not use his or her
public title in conducting his or her private employment. Restrictions on engaging in
private business activities of public officials and employees are addressed by the Ohio
Ethics Commission in Opinion 96-004 (1996). This Board recommends that judges and

Op. 2002-10 5

judicial employees review that opinion for the related guidance it provides. In Opinion
96-004, the Ohio Ethics Commission advised that:

       (1) The Ohio Ethics Law and related statutes do not prohibit public
       officials and employees from engaging in private outside employment
       or business activities provided that no conflict of interest exists
       between the private interest and public duties of the public official or
       employee, and there is no misuse of the public office or employment
       of the official or employee, as described below; (2) Divisions (D) and
       (E) of Section 102.03 of the Revised Code prohibits a public official or
       employee from engaging in private outside employment or business
       activity with parties that are interested in matters before, regulated by,
       or doing or seeking to do business with his own public agency unless it
       is determined by his public employer that he is able to withdraw, as a
       public official or employee, from consideration of matters that affect
       the interests of the party with which he desires to engage in private
       outside employment or business activity; and (3) Division (D) of
       Section 102.03 of the Revised Code prohibits a public official or
       employee who engages in private outside employment or business
       activity from: (a) using public time, facilities, personnel, or resources
       in conducting a private business or while engaging in private outside
       employment including conducting demonstrations for clients using
       public equipment; (b) using his official title or identification on private
       business cards or other written materials or appearing in uniform while
       soliciting business or conducting demonstrations for clients; (c) using
       his relationship with other public officials and employees to secure a
       favorable decision or action by the other officials or employees
       regarding his private interests; (d) discussing, deliberating, or voting
       on any matter involving his private business, including recommending
       his outside employer’s or business’s services to his own public agency;
       (e) receiving fees for providing services rendered on projects that he
       has recommended in his official capacity; (f) participating in decisions
       or recommendations regarding his competitors; and (g) using his
       public position or authority in any other way to secure a benefit for his
       outside employer or private business.

A determination as to whether a judge will allow a probation officer to withdraw from
public duties to avoid conflict in accepting private employment requires great thought by
the judge. A judge must be mindful of the judge’s administrative responsibilities with
regard to judicial employees under Canon 3(C)(2) of the Ohio Code of Judicial Conduct.

   Canon 3(C)(2) A judge shall require staff, court officials, and others
   subject to the judge’s direction and control to observe the standards of
   fidelity and diligence that apply to the judge and to refrain from
   manifesting bias or prejudice in the performance of their official duties.

Op. 2002-10 6

In this Board’s view, allowing a probation officer to withdraw from a substantial part of
his or her duties as a probation officer in order to gain private part-time employment with
a drivers’ intervention program does not comport with the high standards of fidelity and
diligence that apply to the judge and judicial employees. Nevertheless, whether a
probation officer whose duties it is to supervise defendants on probation may withdraw
from his or her duties is for the municipal court judge to determine based upon the duties
and responsibilities and the facts and circumstances of both the public and private
employment. In making the determination, the judge’s concern should be the impact on
the court and what is important for the court in the fair and impartial administration of
justice, not the private business needs of the company or the private personal or financial
needs of the employee.

Lastly, it is not appropriate for a probation officer to use the authority or influence of
court employment to secure private employment. Ohio Ethics Law, Section 102.03(D) of
the Ohio Revised Code, prohibits a probation officer employed in a municipal court
department of probation to use the authority or influence of his or her court employment
to secure private employment by a for-profit company that operates a drivers’
intervention program for defendants found guilty of operating a motor vehicle while
under the influence of alcohol and sentenced by the court to attend a drivers’ intervention
program as a condition of probation. For instance, the promise of court referrals of
defendants to a drivers’ intervention program would be a misuse of the probation
officer’s court employment to secure private employment.

In conclusion, the Board offers this advice. Ohio Ethics Law, Section 102.03(E) of the
Ohio Revised Code, prohibits a probation officer employed in a municipal court
department of probation from soliciting or accepting private employment by a for-profit
company that operates a drivers’ intervention program for defendants found guilty of
operating a motor vehicle while under the influence of alcohol and sentenced by the court
to attend a drivers’ intervention program as a condition of probation, unless the municipal
court judge determines that the probation officer may withdraw from his or her duties as
a probation officer with regard to those defendants and have no involvement in informing
or assisting any defendant in choosing which drivers’ intervention program to attend.
Whether a probation officer may withdraw from his or her duties is for the municipal
court judge to determine based upon the duties, responsibilities, facts, and circumstances
of both the public and private employment. In making the determination, the judge’s
concern should be the impact on the court and what is important for the court in the fair
and impartial administration of justice, not the private business needs of the company or
the private personal or financial needs of the employee.

Ohio Ethics Law, Section 102.03(D) of the Ohio Revised Code, prohibits a probation
officer employed in a municipal court department of probation from using the authority
or influence of his or her court employment to secure private employment by a for-profit
company that operates a drivers’ intervention program for defendants found guilty of
operating a motor vehicle while under the influence of alcohol and sentenced by the court
to attend a drivers’ intervention program as a condition of probation. For instance, the

Op. 2002-10 7

promise of court referrals of defendants to a drivers’ intervention program would be a
misuse of the probation officer’s court employment to secure private employment.

Advisory Opinions of the Board of Commissioners on Grievances and Discipline are
informal, nonbinding opinions in response to prospective or hypothetical questions
regarding the application of the Supreme Court Rules for the Government of the
Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary, the
Code of Professional Responsibility, the Code of Judicial Conduct, and the
Attorney’s Oath of Office. Pursuant to Section 102.08 of the Ohio Revised Code, the
requester may reasonably rely on the opinion as it applies to Ohio Ethics Law and
related statutes.