School districts have generally never been “work from home” employers. Yet the COVID-19 crisis has resulted in more school employees than ever working remotely. While some are busier than before, others have found themselves having more free time – especially as schools remain closed to students. Consequently, some employees have inquired whether they can pick up a second job, such as delivering for Amazon or delivering food. In some instances, the employees’ second job would overlap with their regular hours all while still being paid by the school district.
The answer, which may or may not be found in the negotiated agreement or board policy, is that employees are not permitted to work a second job during their regular work hours while still being paid by the school district. Not only must an employee remain available to the school district during his/her normal work hours in case he/she is needed to perform his/her work duties, but he/she also may be violating the Ohio Ethics Law and related statutes.
Ohio’s ethics laws (R.C. Chapter 102, R.C. 2921.42 and 2921.43) generally prohibit public officials and employees from misusing their official positions for their own personal benefit or the benefit of their family members or business associates. With limited exceptions, these laws apply to all individuals serving as officials and employees for public agencies such as school districts.
One relevant prohibition is found in R.C. 102.03(D), which prohibits employees from actively using their authority or influence to secure anything of value or the promise of anything of value that could have a substantial and improper influence on their duties. The Ohio Ethics Commission has found that the compensation that employees would receive from private outside employment or business activity would be a “thing of value” of such character as to manifest a substantial and improper influence. Accordingly, the Ohio Ethics Commission has determined that employees are prohibited from “using public time, facilities, personnel, or resources in conducting a private business or while engaging in private outside employment.” OEC Adv. Op. No. 96-004. Stated differently, the Ohio’s Ethics Laws prohibit employees from working a second job during their regular work hours. In that regard, employees must remember that their duty is to honor the public’s trust by performing tasks assigned to them by the public agency they serve, i.e, the school district. School districts provide resources to their employees for the performance of these tasks and not for the employees’ personal financial gain or benefit.
But there are other restrictions for employees who engage in a private outside business – even when the second job does not overlap with their regular work hours. In that regard, R.C. 102.03(D) also prohibits employees from:
- Using their relationship with other public officials and employees to secure a favorable decision or action by the other officials or employees regarding their private interests;
- Discussing, deliberating, or voting on any matter involving their private business, including recommending their outside employer’s or business’s services to his own public agency;
- Receiving fees for providing services rendered on projects that they recommended in their official capacity;
- Participating in decisions or recommendations regarding their private business competitors; and
- Using their public position or authority in any other way to secure a benefit for their outside employer or private business.
In addition, R.C. 2921.43 prohibits employees from soliciting or accepting improper compensation (including gifts) from anyone other than their public employer – if the purpose or result of the compensation is to provide payment to the employee in return for the performance of his or her official duties.
Likewise, an issue of compatibility is presented whenever an employee wishes to hold two or more positions of public service, and at times even when the second job is a private position. Moreover, working a second job may be prohibited by board policy.
Thus, employees should heed the above restrictions when they are considering working a second job. They should be reminded, if necessary, that the Ohio Ethics Law and related statutes are criminal laws with potentially serious consequences, including fines and possible jail terms. In some situations, forfeiture of the office or employment may also be applicable.
Because the application of the Ohio Ethics Law and related statutes is very fact specific, the above restrictions may not apply to every situation. For any specific questions, school districts and employees are encouraged to contact their legal counsel.