March 29, 2018
Over the past year, the OSBA, in partnership with the Ohio Legal Assistance Foundation
(OLAF) and the metro bar associations, has been working to steadily reeducate and persuade members of Ohio's Congressional delegation to oppose the effort to defund the Legal Services Corporation (LSC). LSC provides approximately one third of funding for Ohio legal aid programs and assists more than 1.8 million low-income Americans annually.
On Friday, we learned that our work and the work of countless others doing similar work in their own states has paid off. Congress passed an omnibus spending bill to fund the government through Sept. 30, 2018 (and avert a government shutdown), and as part of that bill, LSC not only maintained its funding, its appropriation was increased by $25 million. This is a significant increase and an indication of strong bipartisan support for the work of legal aid. It represents the highest level of LSC funding since 2010.
We are grateful to all members of the Ohio Congressional delegation who supported the bill and are especially appreciative that Representatives Steve Stivers (R-Columbus), Mike Turner (R-Dayton), Joyce Beatty (D-Columbus) and Marcia Fudge (D-Cleveland) were willing to add their names to a recent bipartisan "Dear Colleague" letter which called for robust funding for legal aid.
A team from the OSBA and OLAF will have the opportunity to thank many of these members in person when they descend on Washington D.C. for the annual ABA Day (April 10-12). In addition to continuing to talk about the importance of legal aid funding, they will be discussing the importance and need for the Public Service Loan Forgiveness program, which has been slated for elimination as part of a House higher education reform bill. You can read more about that here
Proposed "O'Neill" Rule
The Ohio Supreme Court has released a proposed amendment to the Ohio Code of Judicial Conduct that would define the term "candidate" for non-judicial elective office, in order to clarify when a judge seeking non-judicial office must resign from the bench.
The proposed change comes in the wake of a controversy surrounding former Supreme Court Justice Bill O'Neill's decision to remain on the bench after publicly announcing his candidacy for Governor in October. He maintained that he would not officially become a candidate until he filed his petitions for Governor. Though he announced he would recuse from all new cases and eventually resigned at the end of January (just before the filing deadline), many, including this Association, continue to believe a change is needed to prevent future controversies and conflicts.
As you will recall, on behalf of the OSBA, President Randall Comer had called on Justice O'Neill to resign immediately
, saying recusal was not enough to meet the intent of Canon 4, which provides that "[a] judge or judicial candidate shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.” Specifically Rule 4.5 states in relevant part that “[u]pon becoming a candidate in a primary or general election for a nonjudicial elective office, a judge shall resign from judicial office…”
The proposed change would add one section and amend another under Rule 4.6 of the Ohio Code of Judicial Conduct, which provides definitions for the terms used in the rules. You can review the proposed language on the Supreme Court's website
. The Court is accepting comments (in writing or via e-mail) on the proposed language through April 25, 2018.
Council of Delegates to take up seven new proposals in April
On April 27, members of the OSBA Council of Delegates will gather at OSBA headquarters in Columbus to vet seven new OSBA committee and section proposals
to determine if they will become priority legislation for the Association. With the Council's blessing, the OSBA government affairs team will be empowered to take the proposals to the Ohio General Assembly to be adopted. The OSBA's got a good track record. In 2017 alone, 27 different legislative changes were enacted based upon the ideas of OSBA committees and sections.
Over the next five weeks leading up to the Council meeting, your OSBA Weekly Legislative Report will be featuring each of the proposals...starting right here, this week.
Corporation Law Committee proposals deal with nonprofit law
First up are two proposals originating from the Corporation Law Committee dealing with Ohio's Nonprofit Corporation Law.
One seeks to better align Chapter 1702 (the chapter dedicated to Ohio's Nonprofit Corporation Law) with recent changes that have been made to Ohio's General Corporation Law in Chapter 1701 where appropriate, keeping in mind the unique nature of nonprofit corporations. Perhaps the most substantively important amendment is the proposed addition of O.R.C. §1702.341, concerning the fiduciary duties of officers. O.R.C §1702.341 is similar to O.R.C §1701.641, concerning the fiduciary duty of officers of Ohio General Corporations, that was added in 2016 as part of Senate Bill 181
The other proposal would allow religious organizations to opt in to the benefits and requirements that are associated with being an Unincorporated Nonprofit Association under Chapter 1745. When O.R.C. Chapter 1745 was last amended in 2012, one of the primary reasons for the amendments was to incorporate the latest concepts and procedures found at that time in the Uniform Unincorporated Nonprofit Associations Act into the Ohio statute.
During the review process conducted in 2012 by the Nonprofit Corporations Subcommittee of the Corporation Law Committee, members of the Subcommittee were contacted by several members of the Ohio Bar who represented religious organizations seeking an exemption from the requirements. The principal concern of the religious organizations, as expressed by their lawyers, was that including religious organizations within the coverage of Chapter 1745 might lead to future disputes and possible “church vs. state” litigation if/when religious rules and procedures differed from those required by Chapter 1745.
After considering the issues raised by the religious organizations, the Subcommittee, at the time, recommended that religious organizations be exempted from the requirements of Chapter 1745. That exemption (as approved by the Corporation Law Committee, the Council of Delegates and the Ohio General Assembly) is currently found in the definition of Unincorporated Nonprofit Association. Several months ago, the Subcommittee was approached by another member of the Ohio Bar whose concern was that Chapter 1745, as now written, automatically excludes religious organizations from coverage, thereby denying officers, directors and members of religious organizations the statutory protections from personal liability that are afforded therein. After considering this concern, the Subcommittee determined that an amendment was in order to permit religious organizations to "opt-in" to both the requirements and benefits of being an Unincorporated Nonprofit Association.
Many thanks to the Corporation Law Committee and its subcommittees for their hard work and for bringing these issues to the attention of the Council and the OSBA.
Stay tuned for next week's report in which we will discuss another proposal before the Council of Delegates coming from yet another hardworking committee/section.
The Ohio General Assembly remains on Spring/Easter break next week, so there won't be any voting sessions until April 11.
And just a final reminder if you are in the A-L group of attorneys who were required to earn your CLE hours by the end of 2017 and are currently out of compliance -- you have until Monday, April 2, to complete your hours. For those in this situation, it's Mission CLE Compliance this weekend. The OSBA offers a wide range of courses that can satisfy your Supreme Court requirements, including courses that will bring you up to speed on many of the latest legislative changes to take effect.
Tracking OSBA Legislation
Remember, you can always track bills we are watching and OSBA priority legislation via the Legislative
section at www.OhioBar.org