COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 72655 STATE OF OHIO ACCELERATED DOCKET Plaintiff-appellee JOURNAL ENTRY vs. AND ANTHONY COOPER OPINION Defendant-appellant PER CURIAM DATE OF ANNOUNCEMENT NOVEMBER 26, 1997 OF DECISION CHARACTER OF PROCEEDINGS Criminal appeal from Court of Common Pleas Case No. CR-347684 JUDGMENT AFFIRMED. DATE OF JOURNALIZATION APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES NEAL M. JAMISON Cuyahoga County Prosecutor 5709 Smith Road GAIL D. BAKER Brook Park, Ohio 44142 Assistant County Prosecutor 8th Floor - Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- PER CURIAM: The singular question presented for resolution on this appeal is whether the appellant, Anthony Cooper, an employee of Envirotest Systems Inc., the agency with whom the state of Ohio contracted to conduct motor vehicle emissions testing in Cuyahoga County, is a public servant as that term is used in R.C. 2921.02 which defines the crime of bribery. We think he is and for that reason affirm the judgment of the court which accepted his plea of no contest and found him guilty of bribery. The record in this case reveals that on November 7, 1996, Cooper conducted an E-check examination of a motor vehicle which had been intentionally designed to fail by Carl Monday, an investigative reporter employed by a local television station. When the vehicle failed to pass the test, Cooper agreed with the customer to issue a compliance certificate in exchange for twenty dollars. Upon receipt of the money, he issued the certification indicating that the vehicle had passed the test. The television station videotaped the entire transaction and subsequently presented the videotape to State Highway Patrol Trooper J.E. Mannion who conducted an investigation during which Cooper admitted that he had entered the test results from another vehicle into the computer to achieve a passing result for the customer who had paid him the twenty dollars. On February 18, 1997, the Cuyahoga County Grand Jury indicted Cooper for bribery in violation of R.C. 2921.02 and tampering with records in violation of R.C. 2913.42. Subsequently, Cooper filed -3- a motion to dismiss the bribery charge alleging that he was not a public servant as the term is used in that code section. On May 14, 1997, the trial court denied that motion on the record, but never journalized its ruling. Following the court's ruling, the appellant pled no contest to the charge of bribery and the state moved to nolle the records tampering charge. The court accepted Cooper's no contest plea and found him guilty of bribery. The court then referred the matter for preparation of a pre-sentence investigation report and subsequently sentenced Cooper to a term of one year in prison and imposed a $1,000 fine. Cooper now appeals and raises one assignment of error for our review stated as follows: I. THE TRIAL COURT ERRED IN FINDING THAT THE APPELLANT WAS A PUBLIC SERVANT WITHIN THE MEANING OF O.R.C. 2921.02. Appellant argues the trial court erred in adjudicating his guilt because he is not a public servant as that term is defined in the bribery statute. The state contends however, that Cooper held a position of public trust because, as an employee of a company under contractual agreement with the State of Ohio, his sole purpose was to test compliance with the Federal Clean Air Act as directed by the Ohio Administrative Code. The issue then presented for resolution concerns whether an employee of a private company hired by the state to conduct emissions testing is a public servant as that term is used in defining the crime of bribery in R.C. 2921.02. Bribery is defined as follows: -4- (B) No person, either before or after he is *** employed *** as a public servant ***, shall knowingly solicit or accept for himself *** any valuable thing or valuable benefit to corrupt or improperly influence him *** with respect to the discharge of his *** duty. (Emphasis added.) The definition of public servant is contained in R.C. 2921.01, which states, in part: (B) public servant means any of the following: (1) Any public official; (2) Any person performing ad hoc a governmental function, including, but not limited to, a juror, member of a temporary commission, master, arbitrator, advisor, or consultant. In State v. Blagajevic (1985), 21 Ohio App.3d 297, this court determined that an individual employed as a janitor at the Parma police station under a federal job training program who did not participate in the state retirement plan and who did not enjoy benefits afforded other city employees was not a city employee for purposes of the theft-in-office statute. Based on this reasoning, appellant similarly argues that because he was not an employee of the State of Ohio, he should not be considered as an agent of the state. In this regard, the Ohio Ethics Commission issued Advisory Opinion No. 92-001, January 31, 1992, as follows: A person is an agent of the state, and thus, a public official as defined in Division (A) of Section 2921.01 of the Revised Code, when: (a) The person has the power to act on behalf of and bind the state by his actions; (b) The state has the right to control the actions of the person; and (c) The actions of the person are directed toward the attainment of an objective sought by the state. -5- Appellant concedes the first and third parts of the test, but challenges whether the state has the right to control his actions inasmuch as he is on the private payroll of Envirotest. However, O.A.C. 3745-26-12(D) suggests that the State of Ohio has established procedures for conducting emissions testing which do control the actions of those persons conducting testing. Based upon the foregoing analysis, we have concluded that at the time Cooper conducted emissions testing, he was performing an ad hoc governmental function and had the power to bind the state by his actions; that the state therefore controlled his actions; and that his actions were directed toward attainment of a state objective. Accordingly, Cooper acted as a public servant on November 7, 1996, when he accepted twenty dollars and issued a compliance certificate to a vehicle which had failed emissions testing. We therefore reject this assignment of error and affirm the judgment of the trial court. Judgment affirmed. -6- It is ordered that appellant recover of appellee his costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. TERRENCE O'DONNELL, PRESIDING JUDGE LEO M. SPELLACY, JUDGE TIMOTHY E. McMONAGLE, JUDGE DISSENTS (SEE DISSENTING OPINION ATTACHED) N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(a). COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72655 STATE OF OHIO : : Plaintiff-appellee : : D I S S E N T I N G vs. : : O P I N I O N ANTHONY COOPER : : Defendant-appellant : TIMOTHY E. McMONAGLE, J. DISSENTING: In light of the decision of the majority, I must respectfully, but adamantly, dissent. The bribery statute at R.C. 2921.02 provides, in part: (B) No person, either before or after he is elected, appointed, qualified, employed, summoned or sworn as a public servant or party official, shall knowingly solicit or accept for himself or another person any valuable thing or valuable benefit to corrupt or im- properly influence him or another public servant or party official with respect to the discharge of his or the other public servant's or party official's duty. Paraphrased to fit this factual situation, the statute prohibits any person, before or after he is employed as a public servant, from knowingly soliciting or accepting for himself any valuable thing or valuable benefit meant to corrupt or improperly influence him with respect to the discharge of his duty. The definition of public servant is contained in R.C. 2921.01 and provides, in part: -2- (B) Public servant means any of the follow- ing: (1) Any public official; (2) Any person performing ad hoc a gov- ernmental function, including but not limited to, a juror, member of a tempo- rary commission, master, arbitrator, advisor or consultant. *** A public official is defined at R.C. 2921.01 as: (A) *** any elected or appointed officer or employee, or agent of the state or any politi- cal subdivision, whether in a temporary or permanent capacity, and including without limitation, judges, and law enforcement offi- cers. Defendant, Anthony Cooper, is clearly not included in the aforementioned categories or definitions. The majority herein urges application of Ohio Ethics Commission Advisory Opinion, No. 92-001, rendered January 31, 1992. The Ethics Commission is empowered to administer, interpret and assist in the enforcement of R.C. Chapter 102 and R.C. 2921.42 and 2921.43. See R.C. 102.02, 102.06 and 102.08. These provisions include Ohio's financial disclosure law, as well as prohibitions against public officials and employees misusing their official positions for their own personal benefit or the benefit of their family members, business associates or where there is otherwise a conflict of interest. None of these is implicated in this case. Further, I cannot concede that this advisory opinion even includes this defendant within its terms. Specifically, I do not find that the state had the right to control his actions. -3- It is important to note that R.C. 2901.03, on the other hand, does explicitly prohibit a conviction based upon an advisory opinion of an ethics commission and provides, in part: (A) No conduct constitutes a criminal offense against the state unless it is defined as an offense in the Revised Code. (B) An offense is defined when one or more sections of the Revised Code state a positive prohibition or enjoin a specific duty, and provide a penalty for violation of such prohi- bition or failure to meet such duty. (Empha- sis added.) R.C. 2901.04 then further provides: (A) Sections of the Revised Code defining offenses or penalties shall be strictly con- strued against the state and liberally con- strued in favor of the accused. The bribery statute and the definitional section of that statute exclude the defendant from its terms. The advisory opinion of the Ethics Commission is merely an interpretation of the law without binding effect. See Black's Law Dictionary (6 Ed.Rev. 1990) 54. It is not a statute or ordinance and, as such, cannot be the basis of a conviction for a criminal offense. .