The Dayton Daily News Columbus bureau filed public records requests and reviewed hundreds of pages of emails, financial disclosure filings, ethics opinions, instructor evaluations and internal auditor documents for this story.
The Daily News has written extensively about ethics issues in Columbus as well as the governance of Ohio State University, which is the state’s flagship public university.
The Ohio Ethics Commission is investigating whether U.S. District Court Judge Algenon L. Marbley has been violating state ethics laws by serving on the Ohio State University Board of Trustees and at the same time being paid at total of $214,000 to teach courses in the OSU Moritz College of Law over the past seven years, the Dayton Daily News has learned.
Marbley said he has not violated the ethics laws because he meets the criteria for an exemption.
There are two state statutes that may be at issue. State ethics laws prohibit public officials from having an interest in a public contract with the government entity they are connected to. The Ohio Ethics Commission has jurisdiction over this criminal statute.
Another long-standing law specifically prohibits Ohio State trustees and their relatives from holding professorships or other positions that are paid out of state or university funds. There is no enforcement mechanism for this law, which has been on the law books since at least 1953.
The laws are designed to protect the public against self-dealing and nepotism.
In late October, OSU internal auditors raised the alarm that Marbley’s dual role as well as his daughter-in-law’s $30,000-a-year job at OSU may violate the law against trustees and their relatives holding university jobs. The judge said he did not play any role in the hiring of Crista T. Marbley in 2010 and he didn’t know she had even applied until after the fact.
The internal auditors normally report to the trustees’ audit committee, which is chaired by Marbley. In this case, the team reported to the governance committee. The auditors recommended that the trustees and OSU legal affairs investigate the issues.
OSU lawyers decided Crista T. Marbley’s job didn’t violate state law and the university referred Judge Marbley’s situation to the Ethics Commission on Nov. 8. OSU General Counsel Christopher Culley argued in his letter to Ohio Ethic Commission Director Paul Nick that Marbley meets the exemption criteria to the prohibition because he is paid the going rate, provides a necessary and unique service and his contract was executed at arm’s length.
Culley and the university asked the ethics officials to “confirm” the OSU interpretation of the law and issue an advisory opinion. The Ethics Commission declined, saying advisory opinions provide guidance to a public official before the fact, not after.
“Instead, the Commission has docketed this matter as an investigation and is proceeding accordingly,” Nick wrote to Culley on Feb. 11.
Marbley is now teaching trial practice at OSU without pay this semester, said his attorney Larry James.
Marbley was appointed to the U.S. District Court in Columbus by President Bill Clinton in November 1997. Gov. Ted Strickland appointed Marbley to a nine-year term on the OSU Board of Trustees in 2007.
Though not compensated, the 19-member Board of Trustees oversees academic programs, budgets and administration and employ faculty and staff. They are the board of directors in charge of a university with a $5 billion annual budget, 55,000 students, 35,000 employees, a major medical center, multiple campuses and a high-profile athletics program.
Marbley the teacher and Marbley the trustee have both been in plain sight for the past seven years. Marbley disclosed his teaching income on annual public filings with the 6th Circuit Court of Appeals. His biography on the OSU trustees’ website says he teaches at Moritz College of Law. And he had been teaching at OSU for seven years by the time Strickland asked him to serve on the board. Marbley noted that no one from OSU, the Ethics Commission or the governor’s office previously raised the conflict question.
James said the matter just came to light because OSU’s internal auditors last year added a new item to their checklist.
Marbley taught at Capital University in Columbus for 10 years, ending in 2005 when OSU increased the pay rate for federal judges serving as adjunct faculty and asked them to teach for a full academic year, rather than just one semester at a time. Marbley said he didn’t have the time to teach at Capital and two semesters at OSU. Capital, a private institution, did not disclose what it pays federal judges to serve as adjunct faculty.
The federal judge rate at Ohio State used to be $4,500 to teach a four-credit, one-semester course but in the spring of 2006 the rate bumped to $16,000, according to OSU records. Six federal judges teach courses at Moritz.
Over the past 14 years, Marbley has taught the trial practice course 23 times, earning $269,198 from Ohio State – 80 percent of which was paid out after he joined the OSU Board of Trustees.
Federal regulations prohibit judges from earning more than 15 percent of their government salary from outside jobs. Marbley’s federal judge salary is $200,000.
In 2012, Marbley wrote a $10,170 check to OSU as reimbursement when he exceeded that 15 percent max in 2007 and 2008. In January 2014, he notified Chief Circuit Judge Alice Batchelder of the reimbursement.
Issue has arisen at other schools
The question of university trustees working as paid teachers at their institutions has come to the Ohio Ethics Commission in the past. In opinions issued in 1987 and 2008, the commission said trustees at Kent State University and University of Toledo could teach for free or resign from their boards.
In the 2008 opinion, the commission advised that the trustee could serve as both trustee and paid faculty only if he met the following criteria: he had the teaching job before becoming a trustee and his contract didn’t materially change; he is providing necessary services and treats his university as good or better than he would another institution; and the deal was done at “arm’s length,” meaning it was an open, competitive market without using his position to influence it.
James has already begun his defense of Marbley, preparing a thick packet of documents for the Ethics Commission to review, including stellar reviews of Marbley’s teaching and mentoring skills from former students and law clerks and records showing he received prior approval from the federal courts to take on the paid teaching assignments.
OSU student evaluations of Marbley offer high praise including “this class was amazing. I will never forget it,” “Judge Marbley offers students real-world experience as well as insight from behind the bench with a demeanor that cannot be matched,” and “best class I have taken in law school.”
Marbley is uniquely qualified, given his experience in private practice and on the bench, and he has been teaching uninterrupted since 2000, James argues. Plus, he adds diversity to the law school faculty, which is 87 percent non-minority, according to James’ data.
James also notes that the law school — not the trustees — hires and sets the pay for adjunct faculty.
“I’ll try this case 20 times and I’ll win it 20 times. There is no question in my mind,” James said.
State law requires university trustees to file confidential annual financial disclosure statements with the Ohio Ethics Commission, which then checks the filings for potential conflicts of interest. Marbley did not file those required statements with the Ohio Ethics Commission, though he did file disclosures with the federal 6th Circuit Court of Appeals. James noted that the commission failed to notice that Marbley’s state filings were missing for years.
Only after the commission opened its investigation were Marbley’s federal disclosures filed with the state. It is unclear whose responsibility it is to forward the federal forms to the commission: Marbley, the federal court or OSU.
Marbley said he is looking forward to having the Ethics Commission agree with OSU’s interpretation that he meets the exemption criteria.
“We sent up to the Ethics Commission to confirm the analysis that we had,” Marbley said. “So, I’m hoping to get a call any day from the commission confirming our analysis.”