THE JOINT LEGISLATIVE ETHICS COMMITTEE

Advisory Opinion 95-016

November 15, 1995

Syllabus by the Committee:

Pursuant to sections 101.34 and 102.08 of the Revised Code that direct the Joint Legislative Ethics Committee to act as an advisory body to the members and employees of the General Assembly on questions relating to ethics, conflicts of interest, and financial disclosure, the Joint Legislative Ethics Committee advises the members of the General Assembly on the following questions: (1) Can a member of the General Assembly be associated with a law firm that has members who are registered legislative agents? and (2) If so, can the member vote on legislation which is being actively advocated by a member of the law firm?

The member is "of counsel" to a law firm with seventeen professionals. The member has no administrative or supervisory responsibilities in terms of the firm management and does not hold an equity position with the firm or share in the firm profits. The member is compensated by salary and a percentage of the member's personal billings over a certain level. The law firm is retained by several hundred clients. Of those clients, some have engaged certain members of the law firm as legislative agents. Those clients who are employers of the legislative agents were associated with the law firm prior to the member's relationship with the firm.

There are no provisions in the Revised Code that restrict a member's association with a law firm which either employs a legislative agent or has members of the law firm who are legislative agents. In fact, it appears the intent of the General Assembly was to assume these types of situations would occur. With the passage of H.B. 492, the General Assembly enacted R.C. 102.031 which deals with conflicts of interest where a member is associated with a legislative agent or their employer. Therefore, a member may be associated with a law firm that has members of the law firm who are registered legislative agents or employers of legislative agents.

However, pursuant to R.C. 102.031 certain voting prohibitions may exist depending upon the particular circumstances. R.C. 102.031(B) provides:

This Committee, in Advisory Opinion 95-013, stated, "in accordance with R.C. 102.031(B), there are three types of relationships with an employer [or legislative agent] that may affect a member's ability to vote: (1) an employee; (2) a business associate; or (3) an administrative position." JLEC Advisory Opinion 95-013 at page 3. Therefore, it must be determined whether the member maintains one of the three types of relationships with the law firm.

The member is an employee of the law firm in the sense that he receives a salary for services rendered. However, for purposes of R.C. 102.031(B), "employee" does not include a member of the General Assembly whose non-legislative position of employment does not involve the performance of or the authority to perform administrative or supervisory functions. R.C. 102.031(A)(4). The member has stated his position has no administrative or supervisory responsibilities with regard to the firm management. Based upon these facts, the member is not an "employee" of a legislative agent or employer of a legislative agent.

"Business associate" is defined as a person with whom a member of the General Assembly is conducting or undertaking a financial transaction. R.C. 102.031(A)(2). In Advisory Opinion 95-013, the Committee stated:

Therefore, based upon the facts presented, the member would not be a "business associate" of a legislative agent or the employer of a legislative agent.

The last category encompasses "[a] person, other than an employee, who is hired under contract to perform certain services and such position involves a substantial and material exercise of administrative discretion in the formulation of public policy. Again, from the facts presented, the member would not be in a position which involved a substantial and material exercise of administrative discretion in the formulation of public policy of the law firm.

Since the member is not an employee, business associate, or in an administrative position, he does not come within the purview of R.C. 102.031(B); therefore, he is not prohibited, under this section, from voting on legislation that is being actively advocated by a member in the law firm.

Furthermore, the member is reminded of Section 4 of the Legislative Code of Ethics which provides:

Hence, if the factual circumstances change, the member may be prohibited from voting not only under R.C. 102.031(B), but also pursuant to Section 4(A).

Lastly, the Committee would caution the member to avoid any communication with members of the law firm who are either legislative agents or employers of a legislative agent regarding the legislation outside the confines of the General Assembly. For example, the member should avoid discussing the legislation with the members in his law firm office. Additionally, the member should not be more accessible to the law firm members than he is to others advocating the legislation simply because of his relationship with the law firm.

Accordingly, the Committee finds and the member is so advised: (1) A member of the General Assembly is not prohibited from being associated with a law firm that has members of the law firm who are registered legislative agents or employers of legislative agents and (2) Pursuant to R.C. 102.031(B), a member of the General Assembly is not prohibited from voting on any legislation that is being actively advocated by a legislative agent or an employer of a legislative agent if the member is not an employee, business associate, or in a position which involves a substantial and material exercise of administrative discretion in the formulation of public policy of the law firm.

This Advisory Opinion is based on the facts presented. It is limited to questions arising under Chapter 102. and Sections 2921.42 and 2921.43 of the Revised Code and does not purport to interpret other laws or rules.

William G. Batchelder, Chairman

Joint Legislative Ethics Committee