An Advisory Opinion from the Ohio Ethics Commission ("Commission"), released on September 25, 2011, will substantially affect how or if superintendents and treasurers can continue dual employment with their public school district and a conversion community school sponsored by that district. The Commission's opinion clearly suggests that superintendents and treasurers, appointed by a public board of education, cannot serve as paid CEOs or CFOs for a conversion school sponsored by their district unless they meet very specific legal requirements. From a practical perspective, it may not be possible to meet any or all of these exceptions. As a result, we recommend superintendents and treasurers give careful consideration to this type of dual employment and consult legal counsel with specific questions or concerns.
The possible legal exceptions to an unlawful conflict include the "official capacity" exception. This requires superintendents and treasurers to represent the public school district and its interests when performing the duties as superintendent or treasurer of the conversion community school. Under these "official capacity" limitations, it appears that an individual serving in these executive level positions would be unable to perform significant duties in his or her role as an official of the conversion community school. In addition, superintendents or treasurers simultaneously working for a public school district and its conversion school would need to prove that their services to the conversion school were unobtainable elsewhere for the same or lower cost. As the Commission noted in its opinion, this would be extremely difficult, if not impossible. Beyond these limitations, a public school district superintendent or treasurer who also provides services to a conversion school could not participate in any matter before the public school district that would directly affect the conversion community school. As a result, the administrative duties normally performed by the school district superintendent or treasurer, regarding oversight of the conversion community school, would have to be reassigned to another official or employee of the sponsoring district. The Commission cautioned that such a reassignment must be open and fully documented, and noted that it may be both cumbersome and costly for the district.
An opinion from the Ohio Attorney General in 2010 was quoted with approval in the Commission's opinion. The Attorney General advised that a person who serves simultaneously in the positions of superintendent or treasurer of a school district and superintendent or treasurer of a conversion community school sponsored by the school district is subject to an impermissible conflict of interest when he/she is directed by the school district's board of education to participate in the oversight, monitoring, management, organization, operation and reviewing or evaluation of finances or financial records of the community school as part of the district board of education's oversight of the community school.