State ex rel. Vana v. Maple Heights City Council

H. Brown, J.,

dissenting. I must respectfully dissent from the syllabus and judgment because Section 4, Article III of the Maple Heights Charter, as applied to appellant Zgrabik, is not rationally related to a legitimate state purpose. 1

At common law, a public official or employee could freely hold more than one office, provided the positions were not incompatible. Throop, A Treatise on the Law Relating to Public Officers and Sureties in Official Bonds (1892) 33-34, Section 30; Mechem, A Treatise on the Law of Public Offices and Officers (1890) 267-268, Section 420. At common law, offices were said to be incompatible “when from the multiplicity of business in them they cannot be executed with care and ability: or when their being subordinate and interfering with each other, it induces a presump *96 tion that they cannot be executed with impartiality and honesty.” 7 Bacon’s Abridgement, Offices & Officers (1845) 313 (paraphrasing Lord Coke). In most of the old cases, incompatibility arose because one of the two offices was charged with supervising the other. See, e.g., Throop, supra, at 39-40, Sections 34-35, and cases therein cited. However, common-law incompatibility may also arise in other situations, such as where holding the two particular offices would violate the principle of separation of powers. E.g., Opinion of the Justices No. III (1825), 3 Me. 484 , 486 (justice of the peace and sheriff, deputy sheriff or coroner).

The Maple Heights Charter provision at issue here is, however, much broader than the common-law incompatibility rule. It prohibits an elected official of the city from holding any other public office except that of a notary public, a member of the Ohio National Guard, a member of the armed forces reserves of the United States not on active duty, or a public school teacher in a district outside the city. The majority suggests that this broader prohibition is necessary to “avoid the appearance of impropriety caused by permitting its council members to receive a salary from two public payrolls” and prevent an individual from “ accumulating] too much power” through holding multiple offices.

I agree with the majority that the city has an important interest in insuring the loyalty of its officers, and in preventing the evils which would arise if a public servant were to effectively become her own supervisor. These are the reasons why the common-law incompatibility rule was developed. Clearly, a provision in the Maple Heights Charter, or even in the Ohio Constitution or the Revised Code, which prohibited the holding of incompatible offices would survive constitutional scrutiny.

However, it is clear that Zgrabik does not hold what the common law would consider incompatible offices. There is no evidence that Zgrabik’s duties as a council member and his duties as a school administrator are such that they “ ‘cannot be executed with care and ability’ ” by the same person. There is nothing which indicates that Zgrabik has become his own supervisor. Though the city of Maple Heights and the Maple Heights City School District have substantially the same population and territory, they are distinct political subdivisions, Cleveland v. Public Library Bd. of Cleveland City School Dist. (1916), 94 Ohio St. 311 , 114 N.E. 247 , neither of which is charged with overseeing the other. Nor has Zgrabik been placed in the position of representing conflicting interests by virtue of his dual employment. Thus, the majority’s conflict-of-interest concerns are not applicable in this situation. See Stone v. Wichita Falls (D. Tex. 1979), 477 F. Supp. 581, 585 . It is not necessary to disqualify Zgrabik from council in order to ensure that he remains a loyal public servant.

Neither do the majority’s other justifications logically apply to Zgrabik. In most Ohio cities, city council is a part-time job with a modest salary. New council members take the job because of the financial rewards. Zgrabik could probably earn more money for the same amount of effort by taking a part-time job in private industry than by serving on council. Thus, there is no demonstrated “appearance of impropriety” in his drawing a second paycheck as a city council member.

Neither is there any danger that Zgrabik has or will accumulate “too much power.” In his role as supervisor of purchasing and food service in the *97 city school district, he is under the direction of the school board. As a member of council, he is only one of several, and cannot enact legislation without the cooperation of others. There is no possibility that Zgrabik could combine the powers of these two offices to the detriment of the citizens of Maple Heights.

Lawyers, bankers and influential businessmen routinely sit on city councils, drawing second or even third paychecks. These people are not disqualified for holding “too much power.” They are seen as performing responsible civic service. Zgrabik, the duly elected, and reelected, choice of the citizens of Maple Heights, is no less entitled to serve. The voters, in the exercise of their collective common sense, have concluded that Zgrabik’s employment by the school district does not render him any less fit to serve the public than council members who are employed in private industry. Unless there is a valid reason to disenfranchise him, the charter provision which does so must be found unconstitutional.

The constitutional infirmity of the Maple Heights Charter provision is further demonstrated by the exception it grants to teachers employed by school districts outside Maple Heights. In terms of the danger of “conflicts of interest” and “accumulating] too much power in one person,” there is no difference between a teacher employed by the Maple Heights schools and a teacher employed by some other school system. Yet, one is permitted to serve, and the other is barred. Further, no reason has been advanced why teachers from other school districts should be allowed to serve but not the janitors, bus drivers, cafeteria workers and other employees of the school district.

In conducting a “rational basis” review, we should, of course, defer to the wisdom of the legislature, but we should be careful not to substitute unthinking deference for judicial scrutiny and analysis. See United States v. Vogel Fertilizer Co. (1982), 455 U.S. 16, 24 ; United States v. Cartwright (1973), 411 U.S. 546, 550 . I would hold that Section 4, Article III of the Maple Heights Charter is unconstitutional as applied to Zgrabik and reverse the judgment of the court below in its entirety.

Re snick, J., concurs in the foregoing dissenting opinion.

1 agree that a “rational basis” standard of review applies in the instant case; however, it should be noted that the highest courts of at least two of our sister states have concluded that municipal charter provisions similar to Section 4, Article III affect fundamental political rights, and are therefore subject to a higher degree of scrutiny. See Acevedo v. North Pole (Alaska 1983), 672 P. 2d 130, 135 (provision subject to strict scrutiny due to impact on franchise rights; upheld as applied to city employee elected to city council); Cummings v. Godin (1977), 119 R.I. 325, 332-342 , 377 A. 2d 1071, 1075-1079 (provision infringes First Amendment rights; held to be overbroad).