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H. B. No. 438 As Reported by the House Judiciary CommitteeAs Reported by the House Judiciary Committee
128th General Assembly | Regular Session | 2009-2010 |
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Representatives Letson, Stautberg
Cosponsors:
Representatives Murray, Blessing, Grossman, Zehringer, Huffman, Derickson, Bubp, Stebelton, Hackett, Harwood, Wagner, Harris, Mecklenborg, Brown, Domenick, Pillich, Boyd, Batchelder, Coley
A BILL
To amend sections 2101.11 and 2151.13 of the Revised
Code to eliminate personal liability for probate
and juvenile judges for the default, malfeasance,
or nonfeasance of any appointee or employee.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2101.11 and 2151.13 of the Revised
Code be amended to read as follows:
Sec. 2101.11. (A)(1) The probate judge shall have the
care
and custody of the files, papers, books, and records
belonging to
the probate court. The probate judge is
authorized to perform the
duties of clerk of the judge's court. The
probate judge may
appoint deputy clerks,
stenographers, a bailiff, and any other
necessary employees, each
of whom shall take an oath of office
before entering upon the
duties of the employee's appointment and,
when so qualified,
may perform the
duties appertaining to the
office of clerk of the court.
(2)(a) The probate judge shall provide for one or more
probate court investigators to perform the duties that are
established for a probate court investigator by the Revised Code
or the probate judge. The probate judge may provide for an
investigator in any of the following manners, as the court
determines is appropriate:
(i) By appointing a person as a full-time or part-time
employee of the probate court to serve as investigator, or by
designating a current full-time or part-time employee of the
probate court to serve as investigator;
(ii) By contracting with a person to serve and be
compensated
as investigator only when needed by the probate
court, as
determined by the court, and by designating that person
as a
probate court investigator during the times when the person
is
performing the duties of an investigator for the court;
(iii) By entering into an agreement with another
department
or agency of the county, including, but not limited
to, the
sheriff's department or the county department of job
and family
services, pursuant to which an employee of the other department
or
agency will serve and perform the duties of investigator for
the
court, upon request of the probate judge, and designating
that
employee as a probate court investigator during the times
when the
person is performing the duties of an investigator for
the court.
(b) Each person appointed or otherwise designated as a
probate court investigator shall take an oath of office before
entering upon the duties of the person's appointment. When
so
qualified,
an investigator may perform the duties that are
established for a
probate court investigator by the Revised Code
or the probate
judge.
(c) Except as otherwise provided in this division, a
probate
court investigator shall hold at least a bachelor's
degree in
social work, psychology, education, special education,
or a
related human services field. A probate judge may waive the
education requirement of this division for a person the judge
appoints or otherwise designates as a probate court investigator
if the judge determines that the person has experience in
family
services work that is equivalent to the required education.
(d) Within one year after appointment or designation,
a
probate court investigator shall attend an orientation course
of
at least six hours, and each calendar year after the calendar
year
of appointment or designation, a probate court
investigator shall
satisfactorily complete at least six hours of
continuing
education.
(e) For purposes of divisions (A)(4), (B), and (C) of this
section, a person designated as a probate court investigator
under
division (A)(2)(a)(ii) or (iii) of this section shall be
considered an appointee of the probate court at any time that the
person is performing the duties established under the Revised
Code
or by the probate judge for a probate court investigator.
(3)(a) The probate judge may provide for one or more
persons
to perform the duties of an assessor under sections
3107.031,
3107.032, 3107.082, 3107.09, 3107.101, and 3107.12 of the
Revised
Code or may enter into
agreements with public children services
agencies, private child
placing agencies, or private noncustodial
agencies under which
the agency provides for one or more persons
to perform the
duties of an assessor. A probate judge who provides
for an
assessor shall do so in either of the following
manners, as
the judge considers appropriate:
(i) By appointing a person as a full-time or
part-time
employee of the probate court to serve as assessor, or
by
designating a current full-time or part-time employee of the
probate court to serve as assessor;
(ii) By contracting with a person to serve and be
compensated
as assessor only when needed by the probate court,
as determined
by the court, and by designating that person as an
assessor during
the times when the person is performing the
duties of an assessor
for the court.
(b) Each person appointed or designated
as a probate court
assessor shall take an oath of office before
entering on the
duties of the person's appointment.
(c) A probate court assessor must meet the
qualifications for
an assessor established by section
3107.014 of the Revised Code.
(d) A probate court assessor shall perform
additional duties,
including duties of an investigator under
division (A)(2) of this
section, when the probate judge assigns additional duties to the
assessor.
(e) For purposes of divisions
(A)(4),
(B), and
(C) of this
section, a person
designated as a probate court assessor shall be
considered an
appointee of the probate court at any time that the
person is
performing assessor duties.
(4) Each appointee of the probate judge may administer
oaths
in all cases when necessary, in the discharge of
official duties.
(B)(1)(a) Subject to the appropriation made by the board
of
county commissioners pursuant to this division, each appointee
of
a probate judge under division (A) of this section shall
receive
such compensation and expenses as the judge determines
and shall
serve during the pleasure of the judge. The
compensation of each
appointee shall be paid in semimonthly
installments by the county
treasurer from the county treasury,
upon the warrants of the
county auditor, certified to by the
judge.
(b) Except as otherwise provided in the Revised Code, the
total compensation paid to all appointees of the probate judge in
any calendar year shall not exceed the total fees earned by the
probate court during the preceding calendar year, unless the
board
of county commissioners approves otherwise.
(2) The probate judge annually shall submit a written
request
for an appropriation to the board of county commissioners
that
shall set forth estimated administrative expenses of the
court,
including the salaries of appointees as determined by the
judge
and any other costs, fees, and expenses, including, but not
limited to, those enumerated in section 5123.96 of the Revised
Code, that the judge considers reasonably necessary for the
operation of the court. The board shall conduct a public hearing
with respect to the written request submitted by the judge and
shall appropriate such sum of money each year as it determines,
after conducting the public hearing and considering the written
request of the judge, is reasonably necessary to meet all the
administrative expenses of the court, including the salaries of
appointees as determined by the judge and any other costs, fees,
and expenses, including, but not limited to, the costs, fees, and
expenses enumerated in section 5123.96 of the Revised Code.
If the judge considers the appropriation made by the board
pursuant to this division insufficient to meet all the
administrative expenses of the court, the judge shall
commence an
action
under Chapter 2731. of the Revised Code in the court of
appeals
for the judicial district for a determination of the duty
of the
board of county commissioners to appropriate the amount of
money
in dispute. The court of appeals shall give priority to the
action filed by the probate judge over all cases pending on its
docket. The burden shall be on the probate judge to prove that
the
appropriation requested is reasonably necessary to meet all
administrative expenses of the court. If, prior to the filing of
an action under Chapter 2731. of the Revised Code or during the
pendency of the action, the judge exercises the judge's
contempt
power in
order to obtain the sum of money in dispute, the judge
shall
not order
the imprisonment of any member of the board of
county
commissioners notwithstanding sections 2705.02 to 2705.06
of the
Revised Code.
(C) The probate judge may require any of the judge's
appointees to
give bond in the sum of not less than one thousand
dollars,
conditioned for the honest and faithful performance of
the
appointee's
duties. The sureties on the bonds shall be
approved in the
manner provided in section 2101.03 of the Revised
Code.
The judge is shall not be personally liable for the default,
malfeasance, or nonfeasance of any such appointee, but, if a bond
is required of the appointee, the liability of the judge is
limited to the amount by which the loss resulting from the
default, malfeasance, or nonfeasance exceeds the amount of the
bond.
All bonds required to be given in the probate court, on
being
accepted and approved by the probate judge, shall be filed
in the
judge's office.
Sec. 2151.13. The juvenile judge may appoint such
bailiffs,
probation officers, and other employees as are
necessary and may
designate their titles and fix their duties,
compensation, and
expense allowances. The juvenile court may by
entry on its journal
authorize any deputy clerk to administer
oaths when necessary in
the discharge of his the deputy clerk's
duties. Such
employees
shall serve during the pleasure of the judge.
The compensation and expenses of all employees and the
salary
and expenses of the judge shall be paid in semimonthly
installments by the county treasurer from the money appropriated
for the operation of the court, upon the warrant of the county
auditor, certified to by the judge.
The judge may require any employee to give bond in the sum
of
not less than one thousand dollars, conditioned for the honest
and
faithful performance of his the employee's duties. The
sureties on
such
bonds shall be approved in the manner provided by section
2151.12
of the Revised Code. The judge shall not be personally
liable
for the default, misfeasance, or nonfeasance of any
employee from
whom a bond has been required.
Section 2. That existing sections 2101.11 and 2151.13 of the
Revised Code are hereby repealed.
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