Compatibility- Member of an elected village council and member of a board of park commissioners of a township park district 

1994 Opinions OAG 94-091 2-451 OPINION NO. 94-091 Syllabus: R. C. 731.12 prohibits a member of the legislative authority of a village from serving simultaneously as a member of the board of park commissioners of a township park district. To: David E. Bowers, Allen County Prosecuting Attorney, Lima, Ohio By: Lee Fisher, Attorney General, December 13, 1994 You have requested an opinion regarding the compatibility of two public positions: member of an elected village council and member of a board of park commissioners of a township park district. According to your letter a village council member has applied to the court of common pleas for appointment to the board of park commissioners of a township park district. 1 See R.C. 511.18(A). The village in question is located within the township in which the township park district has been organized. A prosecuting attorney is not responsible for furnishing legal advice or representation to a member of the legislative authority of a village. Instead, R.C. 733.48 states that the legislative December 1994 1 2-452 OAO (J4-()<)! Attorncy Gencral A Member of the Legislative Authority of a Village May Not Hold Another Public Office Pursuant to the compatibility test that appears in 1979 Op. Att'y Gen. No. 79-111, two public positions are incompatible if, inter alia, the governing statutes of either position prohibit simultaneous service in the other position. The provisions of RC. 511.18-.99, which govern the organization and operation of township park districts, do not prohibit m ~mbers of a board of park commissioners from serving in other public positions. On the other hand, RC. 731.12, which establishes the qualifications of members of the legislative authority of a village, states, in pertinent part, that "[n]o member of the legislative authority shall hold any other public office .... Any member who ceases to possess any of such quaEfications or who removes from the village shall forfeit his office." (Emphasis added.) Bec:"Lit~ your question concerns a member of a village legislative authority subject to RC. 731.12, it is necessary to determine whether the position of member of the board of park commissioners of a. township park district is a public office for purposes of that statute. 2 authority of a village, when it deems it necessary, "may provide legal counsel for the village, or for any department or official thereof, for a period not to exceed two years, and provide compensation for such counsel." In addition, a prosecuting attorney has no duty pursuant to RC. 309.09 to provide legal counsel to the board of park commissioners of a township park district, or to the individual members of the board. See 1964 Op. Att'y Gen. No. 1297, p. 2­ 322 (the members of a board of park commissioners of a township park district appointed and acting pursuant to R C. 511. 18 are not township officers within the meaning of R. C. 309.09, and the prosecuting attorney does not have a statutory duty to provide legal counsel for that board); 1927 Op. Att'y Gen. No. 279, vol. I, p. 489 (a board of park commissioners is not a county board within the purview of G.c. 2917, now RC. 309.09). Your inquiry does relate, however, to the ability of a judge of the court of common pleas to appoint the individual in question to the board of park commissioners, and thus you properly may advise the judge in that regard, if so requested. See RC. 309.09(A) (providing, in part, that the prosecuting attorney shall be the legal adviser of "all ... county officers"); 1988 Op. Att'y Gen. No. 88-055 (syllabus, paragraph one) (a common pleas court judge is a county officer for purposes of RC. 305.14 and Re. 309.09); 1985 Op. Att'y Gen. No. 85-014 at 2-54 ("a common pleas judge is a county officer for purposes of obtaining legal representation under RC. 309.09"). In addition, your question relates to your obligation under RC. 2733.01 to bring a civil action in quo warranto against any individual who unlawfully holds or exercises a public office. See RC. 2733.04; RC. 2733.05. For those reasons, therefore, it is appropriate to address your question by way of a formal opinion. See RC. 109.14 (the Attorney General "shall advise the prosecuting attorneys of the several counties respecting their duties"). You have indicated that the village in question has not adopted a charter provision pursuant to Ohio Const. art. xvm, §7 that alters the qualifications for members of a village legislative authority that appear in R C. 731.12, and that specifically removes that section's prohibition against those members holding other public office. See State eX' rei. Ziegler v. Hamilton County Board ofElections, 67 Ohio S1. 3d 588,621 N.E.2d 1199 (1993) (R.C. 731.12 creates an exclusive set of qualifications for village council members, which are procedural in nature; thus, a village that wishes to alter those qualifications may do so only by the adoption of a charter provision). 2 2-453 1994 Opinions OAG 94-091 Meaning of Public Office for Purposes of R.C. 731.12 The Ohio Supreme Court has described the traditional criteria used to determine whether a position is a public office in the following manner: The usual criteria in determining whether a position is a public office are durability of tenure, oath, bond, emoluments, the independency of the functions exercised by the appointee, and the character of the duties imposed upon him .... The chief and most-decisive characteristic of a public office is determined by the quality of the duties with which the appointee is invested, and by the fact that such duties are conferred upon the appointee by law. If official duties are prescribed by statute, and their performance involves the exercise of continuing, independent, political or governmental functions, then the position is a public office and not an employment. ... [I]t is manifest that the functional powers imposed must be those which constitute a part of the sovereignty of the state. State ex rel. Landis v. Board o/Commissioners, 95 Ohio St. 157, 159-60, 115 N.E. 919, 919-20 (1917); see also State ex rel. Milburn v. Pethtel, 153 Ohio St. 1,90 N.E.2d 686 (1950) (citing State ex rei. Landis with approval); Scofield v. Strain, 142 Ohio St. 290, 51 N.E.2d 1012 (1943) (same); State ex rel. Attorney General v. Jennings, 57 Ohio St. 415,49 N.E. 404 (1898); 1963 Op. Att'y Gen. No. 3548, p. 58, 61 (lO[t]he requisite elements of public office are: (1) the incumbent must exercise certain independent public duties, a part of the sovereignty of the state; (2) such exercise by the incumbent must be by virtue of his election or appointment to the office; (3) in the exercise of the duties so imposed, he can not be subject to the direction and control of a superior officer lO). The foregoing criteria have been used to determine whether a particular position is a public office for pUI]>Oses of R.C. 731.12. See, e.g., State ex rei. Searl v. Small, 103 Ohio App. 214, 145 N.E.2d 200 (portage County 1956); 1994 Op. Att'y Gen. No. 94-020; 1991 Op. Att'y Gen. No. 91-036; 1990 Op. Att'y Gen. No. 90-059. A Member of the Board of Park Commissioners of a Township Park District Holds a Public Office Applying these criteria in the present situation, it is apparent that the position of member of the board of park commissioners of a township park district is a public office. The members of a board of park commissioners are, pursuant to R C. 511.18(A), appointed by the court of common pleas or a judge thereof, or by the board of township trustees, if the entire park district is contained within the unincorporated area of the township, as the governing body of the township park district. Although members of the board are not required by any provision in RC. Chapter 511 to post a bond, and also serve without compensation, they do serve fixed terms in accordance with the provisions of RC. 511.19. RC. 511.23(A) also provides that the office of member of a board of park commissioners lOis not a township office within the meaning of [R.C. 703.22 (abolishment oftownship offices») but is an office o/the township park district. 10 (Emphasis added.) In addition, members of a board of park commissioners of a township park district perform specific duties and exercise various powers, all of which are prescribed by law and constitute a portion of the sovereignty of the state. Pursuant to RC. 511.23, for example, a board of park commissioners has the authority to locate, establish, improve, maintain, and Dcccmocr 1994 OAG 94-092 Attorney General 2·-454 operate a free public park or parks within the township, and accept a conveyance of appropriate suitable lands and materials for such purposes, R.C. 511.23(B); accept donations of money or other property, or act as trustees of land, money, or other property, in furtherance of the use and enjoyment of the lands controlled by it, R.C. 511.23(C); hire and contract for professional, technical, consulting, and other special services, and purchase goods and award contracts, RC. 511.23(D); appoint a superintendent for the park or parks and designate him as the board's clerk, and appoint all other necessary officers and employees, fix their compensation, and prescribe their duties, R.C. 511.23(E); and adopt bylaws and rules it considers advisable pertaining to alcohol use, government and control of parks, and plant and wildlife preservation, R.C. 511.23(F). Related powers and responsibilities are conferred upon a board of park commissioners by RC. 511.231-.236, R.C. 511.241-.26, and R.C. 511.34-.37. A board of park commissioners also is vested with the traditional sovereign powers of appropriation of property, RC. 511.24, and, upon affmnative vote of the electors, taxation and the issuance of bonds, R.C. 511.27-.29. The members of a board of park commissioners act autonomously and independently in their pelformance of the foregoing powers and duties by virtue of their appointment to the board. Subject to only a few exceptions, see, e.g., R.C. 511.23(C); RC. 511.24; RC. 511.27(C), a board of park commissioners of a township park district is not subject to the direct control or supervision of either the board of township trustees or the court of common pleas in its exercise of those powers and responsibilities. Accordingly, it follows that the position of member of the board of park commissioners of a township park district is a public office for purposes of R.C. 731.12. This means that a member of the legislative authority of a village may not serve simultaneously in that position. Conclusion It is, therefore, my opinion, and you are advisee that R.C. 731.12 prohibits a member of the legislative authority of a village from serving simultaneously as a member of the board of park commissioners of a township park district.