Oregon v. Dansack

• Citation: 623 N.E.2d 20,68 Ohio St.3d 1
• Decision Date: 08 December 1993
• Docket Number: No. 92-2446,92-2446
• Parties: City of OREGON v. DANSACK, Mayor.
• Court: United States State Supreme Court of Ohio

Page 1

68 Ohio St.3d 1

623 N.E.2d 20

City of OREGON v. DANSACK, Mayor.

No. 92-2446.

Supreme Court of Ohio.

Submitted Aug. 16, 1993.

Decided Dec. 8, 1993.

Reminger & Reminger Co., L.P.A., and Nick C. Tomino, Cleveland, for relator.

Newcomer & McCarter and C. Thomas McCarter, Toledo, for respondent.

PER CURIAM.

We grant respondent's motion for summary judgment and deny the writ for the following reasons.

I Authority to Adopt the Ordinance

Relator alleges that city council has authority under the city charter to approve contracts, and the mayor has the duty to execute them. Respondent argues that he has the authority under the charter to "evaluate and discipline" members of the police department and that the proposed contract is an attempt by council to exert authority in this area in which it has no power.

Section 8, Article III of the Charter of the city of Oregon states in part:

"The Council shall have and possess:

"(a) All of the legislative powers of the City as may now or hereafter may be granted by the Constitution and laws of Ohio to legislative bodies of municipalities, and such other powers as may be granted by this Charter and as are now or may hereafter be granted by the laws of Ohio to Boards of Control, Municipal Tax Commissions, Boards of Trustees of Public Affairs, Boards of Cemetery Trustees, Recreation Boards, or any other municipal commission, board or body now or hereafter created by law, except as otherwise provided by the Constitution of Ohio or this Charter."

This obviously confers broad powers on city council. In State ex rel. Holloway v. Rhodes (App.1940), 33 Ohio Law Abs. 26, 35 N.E.2d 987, the Court of Appeals for Franklin County considered a similar problem. There, city council had authorized a contract for the investigation of gas-rate expenditures. The investigator sought to compel payment of his fee, and the city auditor refused payment on grounds that council lacked authority to employ such an investigator. The auditor argued, in part, that a state statute precluded such employment. The statute stated in part that council could "neither appoint nor confirm any officer or employee in the city government except those of its own body * * *." G.C. 4211. The court, however, found that this statute should be read in conjunction with G.C. 4210, which provided in part that members of council, within ten days from the commencement of their term, should elect officers and other council employees. The court concluded that the ten-day provision was directory, not mandatory, and further stated:

"Regardless of legislation, the city council has an inherent power to make full and complete investigation on any matter coming within their operative function, whether in contemplation of future legislation or not. Where the nature of the investigation is such that the council needs competent or expert services in aiding them in determining their official duty, there should be no question that council has the inherent right to make such employment." Id. at 30, 35 N.E.2d at 990.

In the instant case, Section 8(a), Article III of the charter grants council the broadest authority possible under state law, except as restricted by the charter itself. The only potentially restrictive parts of the charter are the clauses in Section 6 of Article IV, which provide that the mayor "shall exercise control of all departments and divisions," and that he has the authority to appoint, discipline and remove employees, "subject to confirmation by a majority of the members of Council." Such passages do not appear inconsistent with council's appointing its own investigator. R.C. 731.04, the successor to G.C. 4210, still provides that a city council may "elect" such employees as are necessary, and R.C. 705.21 authorizes investigations by council. Moreover, to the extent that discipline or removal of employees might become involved, Section 6, Article IV of the Oregon Charter gives council approval power over such an action by the mayor, from which a right to conduct its own investigation may be implied. Otherwise, the charter appears silent on matters of investigation.

Accordingly, we conclude in this case that the legislative authority of council includes the power to investigate and to appoint employees to conduct the investigation in question.

II Compliance with R.C. 5705.41 and Lapse of Appropriation

Respondent argues in support of his motion for summary judgment that council failed to comply with R.C. 5705.41. When relator attempts to establish compliance in its response to the motion, via affidavit of the city clerk-auditor, respondent argues that the evidence shows that the funds have lapsed. This latter argument has merit.

R.C. 5705.41 provides in part:

"No subdivision or taxing unit shall:

" * * *

"(B) Make any expenditure of money unless it has been...