This is an appeal from a judgment of the Franklin County Court of Common Pleas, directing payment of attorney fees from the campaign fund of Thomas E. Ferguson, defendant-appellee.
In October 1993, the Ohio Attorney General appointed a special prosecutor to investigate whether Ferguson had solicited campaign contributions from employees in the State Auditor's Office. Based on the investigations, the state of Ohio, plaintiff-appellant, filed State v. Ferguson, case No. 95CR-2269, and indicted Ferguson on eighty counts. However, this indictment was dismissed at the request of the special prosecutor because the indictment failed to state a prosecutable violation. Then, the state filedState v. Ferguson, case No. 95CR-3401, in June 1995, and indicted Ferguson on twenty-five counts: nine counts of theft in violation of R.C. 2921.41, thirteen counts of solicitation in violation of R.C. 124.57 and 124.62, and three counts of prohibited activities in violation of R.C. 3517.13.
On March 4, 1996, the state agreed to dismiss sixteen counts of the indictment if Ferguson agreed to plead no contest to nine counts of illegal campaign solicitation in violation of R.C.124.57 and 124.62. The plea agreement explained Ferguson's punishment for each of the nine counts to which he would plead guilty. One of the punishments was that Ferguson had to relinquish control of his campaign funds to a new treasurer who would cooperate with the Ohio Attorney General in order to distribute the funds to charities and other entities. *Page 57
Ferguson accepted the plea agreement, and Ferguson, his attorney, the state, and the trial court signed it. The trial court found Ferguson guilty on nine counts of illegal campaign solicitations and, in compliance with the plea agreement, sentenced Ferguson to six months of incarceration on each count, with two counts to be served consecutively and the rest of the counts to be served concurrently with the first two counts. The trial court suspended the confinement part of the sentence for one year of probation, Ferguson had to pay a fine and costs, complete community service, and relinquish control of his campaign fund to the treasurer as conditions of probation.
Kevin Rooney, Ferguson's criminal defense attorney, became the new campaign fund treasurer. Rooney and the Attorney General's Office were not able to agree on the distribution of the campaign funds. The state filed a motion asking the trial court to enforce the terms of Ferguson's probation or, in the alternative, to revoke Ferguson's probation. The trial court held a status conference on June 12, 1996, directing Rooney to liquidate the campaign fund assets and to provide an accounting to the Attorney General's Office and ordering the parties to submit a list of the charities that were to receive money. The trial court also established a date for a hearing at which the charities would be selected and the contribution amounts would be determined. In addition, the trial court would determine whether Ferguson's attorney fees or other costs could be paid from the campaign funds.
The hearing was continued, but the state requested a status conference. At the conference, the state argued that the plea agreement prevented Ferguson from paying his attorney fees out of his campaign fund and that, on July 30, 1996, the Ohio Elections Commission ("OEC") had agreed with the state in Advisory Opinion 96ELC-08 that, to pay legal fees for criminal defense, would violate R.C. 3517.13(O)(2). On February 28, 1997, the trial court heard arguments regarding the plea agreement and, on May 8, 1997, the trial court issued a written decision, finding that the plea agreement did not preclude attorney fees or other costs from being disbursed from the campaign fund. The trial court allowed the partial payment of Ferguson's attorney fees.
The state filed a timely notice of appeal and secured a stay of the trial court's order pending the outcome of the appeal. We granted the state leave to appeal the issue of whether the payment of Ferguson's attorney fees with campaign funds violates R.C. 3517.13(O); specifically, whether the payment of attorney fees with campaign funds for the defense against criminal charges is a violation. The state then filed its appellate brief. Ferguson moved to strike portions of the state's brief because it discussed matters outside the scope of the granted leave to appeal issue. We agreed and limited our appellate review to the issue on which we granted leave. As a result, we only need to determine whether the trial *Page 58 court sanctioned a result prohibited by R.C. 3517.13(O) by ordering the payment of Ferguson's attorney fees for his criminal defense with campaign funds.
The state brings a single assignment of error:
"The trial court's order directing payment of attorney and treasurer fees out of appellee Ferguson's campaign funds altered the parties' plea agreement as accepted in the sentencing entry and in the process sanctioned a result prohibited by Ohio Revised Code § 3517.13(O)."
R.C. 3517.13(O) states:
"No beneficiary of a campaign fund shall convert or accept for personal or business use, and no person shall knowingly give to a beneficiary of a campaign fund, for the beneficiary's personal or business use, anything of value from the beneficiary's campaign fund, including, without limitation, payments to a beneficiary for services the beneficiary personally performs, except as reimbursement for any of the following:
"(1) Legitimate and verifiable prior campaign expenses incurred by the beneficiary;
"(2) Legitimate and verifiable, ordinary, and necessary prior expenses incurred by the beneficiary in connection with duties as the holder of a public office, including, without limitation, expenses incurred through participation in nonpartisan or bipartisan events if the participation of the holder of a public office would normally be expected[.]"
Both the state and Ferguson have presented OEC advisory opinions that have addressed R.C. 3517.13(O) for us to consider. We note that these advisory opinions are neither binding authority nor completely on point.
In Advisory Opinion 87-9, the OEC decided that a public officeholder may not use campaign funds to pay for legal representation to defend himself against criminal charges of tampering with records, theft in office, falsification and bribery. The OEC stated that defending against crimes was not a legitimate expense related to the duties of a public office under R.C. 3517.13(O)(2).
However, in No. 96S-072, which is an OEC opinion that addressed another Ferguson matter, the OEC upheld the essential holding in Advisory Opinion 87-9, but noted that limited circumstances may arise in which the OEC would allow campaign funds to be used to pay for expenses in defending allegations of criminal conduct. See Advisory Opinion 96ELC-08, discussing No. 96S-072. The OEC stated that determinations about whether to make an exception would be made on a case-by-case basis. In the specific circumstances of case No. 96S-072, the OEC decided that Ferguson's campaign funds could be used to pay for *Page 59 expenses incurred in defending allegations of criminal conduct because that criminal case was summarily dismissed before it went to trial.
The OEC Advisory Opinion 96ELC-08, which is the advisory opinion requested by the state during this case and presented to the trial court, followed Advisory Opinion 87-9 and determined that an expenditure for legal fees to defend against criminal charges is an inappropriate use of campaign funds on behalf of the officeholder under R.C. 3517.13(O)(2). The OEC stated that "R.C. § 3517.13(O)(2) requires that an expenditure be related to the duties of the public office. Therefore, a proper campaign expense must be related, according to recognized principles or accepted standards, to a duty of the public office." The OEC concluded that the officeholder's duties do not include defending himself against charges of criminal conduct and, therefore, criminal defense expenses are not legitimate expenses and cannot be paid from campaign funds.
After reviewing these OEC advisory opinions and several others, we note that not all payment of attorney fees with campaign funds is forbidden. The OEC allows the payment of attorney fees with campaign funds for representation against charges brought before the OEC itself. Advisory Opinion 87-15; see, also, Advisory Opinion 90-4. Additionally, the payment of attorney fees with campaign funds for representation in declaratory actions is allowable because these are civil actions. The OEC also has specifically decided that Ferguson's attorney fees could be awarded with campaign funds for representation in a criminal case because the charges were dropped by the prosecutor before going to trial. See Advisory Opinion 96ELC-08, discussing No. 96S-072. Based on that OEC opinion, we conclude that the payment of attorney fees with campaign funds for case No. 96CR-2269 the indictment that was dismissed at the request of the special prosecutor because it failed to state a prosecutable violation-is allowable too. Therefore, before we specifically determine whether the trial court sanctioned a result prohibited by R.C.3517.13(O) by ordering the payment of Ferguson's attorney fees for his criminal defense with campaign funds, we must first decide whether any of the award of attorney fees by the trial court was an award of fees charged for criminal defense not related to case No. 95CR-2269.
The trial court in this case decided that some campaign funds could be applied to the payment of Ferguson's attorney fees:
"This court is of the opinion that counsel for Mr. Ferguson are entitled to some compensation from these funds, but must seek the bulk of their compensation from Mr. Ferguson himself. The court therefore finds that the firm of Messerman and Messerman receive $5,000.00 of their outstanding request of $34,000.00.
"Mr. McTigue is to receive his balance of $10,930.00. *Page 60
"Mr. Rooney is to receive $13,000.00 in fees for his activities as Treasurer and counsel for the fund and that he further is to receive $5,000.00 for his portion of the defense.
Based on the record in this case, we determine that the trial court's award of fees to Donald McTigue was legitimate. The record reveals that none of the attorney fees charged by McTigue were for criminal defense but, rather, were for expenses that already have been determined to be allowable. However, we cannot determine from the record what portion of the attorney fees, if any, was awarded by the trial court to Rooney and to the firm of Messerman and Messerman for allowable expenses and what portion, if any, was awarded for the defense of criminal charges not related to case No. 95CR-2269.
Accordingly, the state's assignment of error is overruled in regard to McTigue and sustained otherwise. The judgment of the Franklin County Court of Common Pleas is affirmed in part and reversed in part, and this cause is remanded to the trial court with instructions to determine the amount of attorney fees, if any, that was awarded from Ferguson's campaign fund for criminal defense not related to case No. 95CR-2269. The trial court may reopen the evidence if it deems it appropriate.
Judgment affirmed in part, reversed in part and cause remandedwith instructions.
LAZARUS, J., concurs.
BOWMAN, J., dissents.