Can an Ohio magistrate run for or serve on a school board, city council, or county board of commissioners?

Plain-English summary

A magistrate asked whether he or she could serve on, or run for, a school board, board of county commissioners, or city council. The Board concluded the answer is no. Although magistrates, unlike judges, are not subject to the constitutional and statutory bars on holding another office of profit or trust, their conduct is governed by the Code of Judicial Conduct. Jud.Cond.R. 4.5, the "resign to run" rule, requires a magistrate to resign from judicial office upon becoming a candidate for a nonjudicial elective office, to prevent misuse of judicial office and improper campaign pledges and to avoid entangling the court in political controversy.

The Board reasoned that because Jud.Cond.R. 4.5 bars a magistrate from holding judicial office while running for nonjudicial office, it would be inconsistent to read the rule as permitting a magistrate to hold a nonjudicial public office at the same time as the magistrate position. A lawyer who already holds a nonjudicial elected office and is then appointed magistrate must decline the appointment or resign the office. The Board added that simultaneously holding both positions also implicates the duties to promote public confidence in the judiciary and to avoid abusing the prestige of office (Jud.Cond.R. 1.2, 1.3) and increases the risk that a reasonable person would question the magistrate's independence, integrity, or impartiality (Jud.Cond.R. 3.1(C)). The opinion notes that statutory compatibility of offices is a matter for the Ohio Attorney General.

In practice

Under this opinion, a full-time or part-time magistrate may not run for or hold a nonjudicial elective office such as a school board seat, city council seat, or county commissioner position. Per the opinion, a magistrate who becomes a candidate for such an office must resign the magistrate position under Jud.Cond.R. 4.5, and a sitting officeholder appointed as magistrate must decline the appointment or resign the office. The opinion frames the concern in terms of judicial independence, the appearance of impropriety, and abuse of the prestige of office.

Common questions

Q: Can an Ohio magistrate serve on a school board or city council?

A: No. The opinion concludes that a full-time or part-time magistrate may not seek election to, or serve on, a school board, city council, or county board of commissioners, because the "resign to run" rule (Jud.Cond.R. 4.5) and related duties bar holding the two positions at once.

Q: Magistrates aren't subject to the constitutional bar on dual offices, so why does this apply?

A: Per the opinion, even though magistrates are not subject to the constitutional and statutory prohibitions that apply to judges, their conduct is governed by the Code of Judicial Conduct, and Jud.Cond.R. 4.5 supplies the bar.

Q: What if a lawyer already holds the elective office and is then appointed magistrate?

A: The opinion states the lawyer must either decline the magistrate appointment or resign from the nonjudicial public office.

Background and rules framework

The opinion interprets the Ohio Code of Judicial Conduct: Jud.Cond.R. 4.5 (activities upon becoming a candidate for nonjudicial office; the "resign to run" rule) and its Application provision, together with Jud.Cond.R. 1.2 (confidence in the judiciary), 1.3 (abuse of the prestige of office), and 3.1 (extrajudicial activities).

Citations and references

Rules of Professional Conduct:

• Ohio Jud.Cond.R. 4.5 and cmt. [1]; Application I(B) (resign to run)
• Ohio Jud.Cond.R. 1.2, 1.3 (confidence in the judiciary; prestige of office)
• Ohio Jud.Cond.R. 3.1(C) (extrajudicial activities)

Statutes and other authority:

• Ohio Const. Art. IV, Sec. 6(B); R.C. 141.04; R.C. 1901.11(D); R.C. 1907.16(B) (offices of profit or trust)
• 1996 Ohio Op. Atty. Gen. No. 1996-032 (prohibitions not applicable to magistrates)

See also

• Ohio BPC Op. 2022-002: Judges and Political Party Office
• Ohio BPC Op. 2004-003: Magistrate on Elected Boards and as a Condo Trustee

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2022/10/Adv.-Op.-2022-09-Final.pdf

Original opinion text

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

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. 65 SOUTH FRONT STREET, 5TH 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.1 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

1The 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.2 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.