Opinion No. (1992) ( 1992 )

ATTORNEY GENERAL LOVING HAS ASKED THAT I RESPOND TO YOUR RECENT REQUEST FOR AN ATTORNEY GENERAL OPINION IN WHICH YOU ASKED, IN EFFECT:

WOULD HOUSE BILL NO. 2234 OF THE 2ND SESSION OF THE 43RD LEGISLATURE PRECLUDE A MENTAL HEALTH CARE FACILITY FROM HOLDING FREE SEMINARS FOR TEACHERS AND SCHOOL PERSONNEL, IF THE CENTER ALSO ACCEPTS REFERRALS FROM THE SCHOOLS INVOLVED BUT IF THE SEMINARS WERE NOT OFFERED WITH THE CONDITION THAT REFERRALS BE MADE?

BECAUSE YOUR REQUEST INVOLVES THE DETERMINATION OF FACTUAL ISSUES BEYOND THE SCOPE OF A FORMAL ATTORNEY GENERAL OPINION, THIS OFFICE HAS DETERMINED THAT YOUR REQUEST SHOULD BE ANSWERED THROUGH THIS INFORMAL LETTER.

THE DISCUSSION WHICH FOLLOWS IS NOT AN OFFICIAL OPINION OF THE ATTORNEY GENERAL. RATHER, THE ANALYSIS AND CONCLUSIONS WHICH FOLLOWS, WHILE SOLELY MY OWN, HAVE BEEN REACHED AFTER CAREFUL RESEARCH OF THE QUESTION YOU HAVE RAISED.

HOUSE BILL NO. 2234 (TO BE CODIFIED AS TITLE 70 Ohio St. 24-104.1 AND 70 Ohio St. 24-104.2), WHICH BECAME EFFECTIVE ON THE 1ST OF SEPTEMBER, 1992, PROVIDES:

"SECTION 24-104.1. IT SHALL BE UNLAWFUL FOR ANY SCHOOL COUNSELOR, TEACHER, ANY OTHER SCHOOL EMPLOYEE, SCHOOL BOARD MEMBER, OR DEPARTMENT OF HUMAN SERVICES EMPLOYEE TO SOLICIT, TAKE, RETAIN, OR RECEIVE ANY MONEY, PROPERTY, OR THING OF VALUE IN THE NATURE OF A FEE OR OTHERWISE FROM A MENTAL HEALTH CARE PROVIDER OR FACILITY OR ANY EMPLOYEE THEREOF FOR DIRECTING OR REFERRING STUDENTS TO THAT PROVIDER OR FACILITY FOR TREATMENT. ANY PERSON CONVICTED OF VIOLATING THE PROVISIONS OF THIS SECTION SHALL BE GUILTY OF A MISDEMEANOR.

SECTION 24-104.2. IT SHALL BE UNLAWFUL FOR ANY MENTAL HEALTH CARE PROVIDER OR FACILITY OR ANY EMPLOYEE THEREOF TO OFFER, TENDER TO PAY OR DELIVER TO ANY SCHOOL COUNSELOR, TEACHER, ANY OTHER SCHOOL EMPLOYEE, SCHOOL BOARD MEMBER, OR DEPARTMENT OF HUMAN SERVICES EMPLOYEE ANY MONEY, PROPERTY, OR THING OF VALUE IN THE NATURE OF A FEE OR OTHERWISE FOR DIRECTING OR REFERRING STUDENTS TO THAT PROVIDER OR FACILITY FOR TREATMENT. ANY PERSON CONVICTED OF VIOLATING THE PROVISIONS OF THIS SECTION SHALL BE GUILTY OF A MISDEMEANOR."

IT IS NECESSARY IN STATUTORY INTERPRETATION TO ASCERTAIN THE LEGISLATIVE INTENT THEREOF FROM THE WHOLE ACT IN LIGHT OF ITS GENERAL PURPOSE AND OBJECTIVE. WOODY V. INDEPENDENT SCHOOL DISTRICT NO. 141 OF POTTAWATOMIE COUNTY, 661 P.2D 892 (OKLA. 1983). WORDS USED IN THE STATUTE, UNLESS OTHERWISE DEFINED, ARE TO BE INTERPRETED IN THEIR ORDINARY SENSE. 25 Ohio St. 1991, 1. HOWEVER, PENAL STATUTES ARE TO BE CONSTRUED STRICTLY AGAINST THE STATE AND LIBERALLY IN FAVOR OF THE ACCUSED. BOUTWELL V. STATE, 659 P.2D 322 (OKL. CR. 1983).

A PLAIN READING OF HOUSE BILL NO. 2234 REFLECTS THAT THE INTENT OF THE LEGISLATURE WAS TO PROHIBIT A SYSTEM WHEREBY TEACHERS OR OTHER PERSONNEL WERE, IN EFFECT, PAID TO MAKE REFERRALS OF STUDENTS TO MENTAL HEALTH CARE FACILITIES. SINCE A VIOLATION OF THE ACT CONSTITUTES A MISDEMEANOR, THE ACT MUST BE CONSTRUED STRICTLY AGAINST THE STATE AND LIBERALLY IN FAVOR OF MENTAL HEALTH CARE FACILITIES AND OTHER AFFECTED PERSONS. BOUTWELL, SUPRA.

THE ACT PROHIBITS THE PAYMENT OR ACCEPTANCE OF PAYMENT, IN THE FORM OF MONEY, PROPERTY OR THING OF VALUE, IN RETURN FOR REFERRALS OF STUDENTS TO A FACILITY. INFORMATION I HAVE GATHERED FOR THE PURPOSE OF THIS OPINION, AS TO THE NATURE OF THE SEMINAR, INDICATES THAT TEACHERS MAY RECEIVE CONTINUING EDUCATION CREDITS FROM THE SEMINARS. THEREFORE, I HAVE PRESUMED THAT THE SEMINARS WOULD BE THINGS OF VALUE. A SPECIFIC DETERMINATION OF THIS WOULD INVOLVE A QUESTION OF FACT, WHICH THIS OFFICE CANNOT ANSWER.

IT IS NOT STRICTLY PROHIBITED FOR A MENTAL HEALTH FACILITY, WHERE THERE IS NO EXPECTATION OF REFERRALS IN RETURN, TO OFFER OR PROVIDE SEMINARS FOR TEACHERS AND SCHOOL PERSONNEL. SHOULD ANY QUID PRO QUO ARRANGEMENT BE MADE, IT WOULD VIOLATE THE PROVISIONS OF HOUSE BILL NO. 2234. HOWEVER, A SPECIFIC DETERMINATION OF THIS AS TO A PARTICULAR CASE WOULD INVOLVE A QUESTION OF FACT, WHICH, AGAIN, THIS OFFICE CANNOT ANSWER.

IT IS, THEREFORE, THE OPINION OF THE UNDERSIGNED ATTORNEY THAT HOUSE BILL NO. 2234 DOES NOT PROHIBIT A GRATUITOUS OFFER OR PROVISION OF A SEMINAR TO TEACHERS OR OTHER SCHOOL PERSONNEL SO LONG AS THERE IS NO EXPECTATION OF REFERRALS IN RETURN THEREFOR.

(JAMES ROBERT JOHNSON)