State ex rel. Corrigan v. Seminatore

• Decision Date: 24 June 1981
• Docket Number: No. 80-719,80-719
• Parties: , 20 O.O.3d 388 The STATE, ex rel. CORRIGAN, Pros. Atty., Appellee and Cross-Appellant, v. SEMINATORE et al., Appellants and Cross-Appellees.
• Court: Ohio Supreme Court

Page 459

66 Ohio St.2d 459

423 N.E.2d 105, 20 O.O.3d 388

The STATE, ex rel. CORRIGAN, Pros. Atty., Appellee and Cross-Appellant, v. SEMINATORE et al., Appellants and Cross-Appellees.

No. 80-719.

Supreme Court of Ohio.

June 24, 1981.

Syllabus by the Court

1. Application by both the prosecuting attorney and the board of county commissioners is a prerequisite to authorization by a court of common pleas pursuant to R.C. 305.14 of appointment of other counsel to represent a county officer, except where the prosecuting attorney has a conflict of interest and refuses to make application.

2. Unless controverted by other evidence, a specific averment that an affidavit pertaining to business of a board is made upon personal knowledge of the affiant board chairman satisfies the Civ.R. 56(E) requirement that affidavits supporting and opposing motions for summary judgment show that the affiant is competent to testify to the matters stated.

3. Verification required by Civ.R. 56(E) of documents attached to an affidavit supporting or opposing a motion for summary judgment is satisfied by an appropriate averment in the affidavit itself.

4. Unless prohibited by statute, utilization of newspaper advertisement for dissemination of information to the general public and to those directly affected by agency action is an implied power of a public agency authorized to perform specific functions and to expend monies therefor, so long as money for such purposes has been appropriated by the proper authority.

In September 1974, the Cuyahoga County Board of Mental

Retardation ("board") was confronted with an employee strike. On September 16 and 17, 1974, several things occurred: (1) a Cuyahoga County common pleas court judge issued a preliminary injunction and ordered compulsory mediation of the labor dispute and appointed a mediator; (2) the board of mental retardation sought an opinion from the prosecuting attorney as to the validity of the court injunction order; (3) the mediator appointed by the common pleas court advised the board of mental retardation to take steps to communicate its offer to the bargaining unit employees and discussed the possibility of a newspaper advertisement concerning the same; and (4) the board of mental retardation by a five-to-two vote adopted a resolution directing its administrator to prepare a memorandum presenting the details of a salary proposal made by the board the previous day, to send such memorandum to each member of the staff and to publish the information in two local daily newspapers.

To effectuate the resolution, the board engaged defendant William Silverman & Company ("Silverman") to prepare a newspaper advertisement for publication in the Cleveland Press and the Cleveland Plain Dealer. Such an ad was published in the Cleveland Press on September 18 and in the Cleveland Plain Dealer on September 19, 1974. The next day, the chairman of the board of mental retardation was notified by assistant prosecuting attorney John Dowling that it was his opinion that there was no authority for the board to pay for such advertisements out of public funds. On October 4, 1974, Dowling requested that the costs not be paid. Notwithstanding, Dowling's protest, payment was subsequently made to Silverman.

On December 18, 1974, the Cuyahoga County prosecuting attorney brought this action on behalf of the state of Ohio, seeking to recover both from Silverman and the five members of the board who cast affirmative votes in favor of the resolution to place the advertisements the amount paid to Silverman for those advertisements, namely, $2,972. The board members were named defendants "(i) ndividually and as a member of the Cuyahoga County Board of Mental Retardation."

The Cuyahoga County prosecuting attorney refused to apply to the common pleas court for appointment of counsel to represent the board members. However, the board of mental retardation adopted a resolution requesting the board of county commissioners, the prosecuting attorney and the common pleas court to authorize the appointment of special counsel to defend the board members in this case. There is no indication of any action being taken by either the county commissioners or the prosecuting attorney, except that the prosecuting attorney vigorously resisted efforts to have the common pleas court appoint counsel for defendant board members. Eventually, the common pleas court appointed counsel for the board members, albeit different counsel than referred to in the board resolution requesting appointment of counsel.

Thereafter, defendants filed motions for summary judgment, supported by an affidavit verifying the accuracy of certain correspondence pertaining to the issues. The common pleas court sustained the defendants' motions for summary judgment and dismissed this action.

Upon appeal, the Court of Appeals reversed, finding: (1) that counsel had been improperly appointed for defendant board members, since R.C. 305.14 required a request by the board of county commissioners even though a request by the prosecuting attorney could be dispensed with because of conflict of interest; (2) that the affidavit of the defendant board chairman in support of the motion for summary judgment is ineffective because it states that the facts are true to the best of his knowledge and belief and because of lack of personal knowledge as to some of the documents referred to; and (3) that the common pleas court erred in rendering judgment for defendant Silverman because an issue exists as to whether a public benefit was received by the services rendered by Silverman for the board of mental retardation.

All defendants appealed to this court, and plaintiff filed a cross-appeal. This matter is now before this court upon allowance of motions and cross-motion to certify the record.

John T. Corrigan, Pros. Atty., and Thomas P. Gill, Asst. Pros. Atty., for appellee and cross-appellant.

Nicholas Bucur, Jr., and Zygmunt G. Slominski, Cleveland, for appellants and cross-appellees members of board of mental retardation.

Baker & Hostetler, Richard R. Hollington, Jr., Louis A. Colombo, Cleveland, and John H. Burtch, Columbus, for appellant and cross-appellee William Silverman & Co.

WHITESIDE, Justice.

This case presents two novel issues: (1) to what extent and how are public officers entitled to counsel when an action is brought against them by the public officer who is required to serve as their attorney, seeking recovery from them for an act performed in the furtherance of their duties as such officers; and (2) whether a public agency has the implied power to expend public funds for advertising purposes to disseminate information concerning the functioning of such public agency.

If the second question be answered in the affirmative, there then arises the question of whether an expenditure of public money for newspaper advertisements setting forth a public agency's latest offer to striking employees constitutes a proper reason for, and method of, disseminating information to the public concerning such public agency. In addition, there is presented the question of what constitutes compliance with the requirements of Civ.R. 56(E) that affidavits with respect to summary judgment be made on personal knowledge.

R.C. 309.09 ¹ provided that "(t)he prosecuting attorney shall be the legal adviser of * * * all other county officers and boards * * *." By that section, the prosecuting attorney is required to "prosecute and defend all suits and actions which any such officer or board directs or to which it is a party." More importantly, R.C. 309.09 prohibits a county officer from employing any attorney other than the county prosecuting attorney, stating, "no county officer may employ any other counsel or attorney at the expense of the county, except as provided in section 305.14 of the Revised Code."

By virtue of R.C. 5126.01 creating a county board of mental retardation in each county, such board is a county board within the contemplation of R.C. 309.09. ²

The common pleas court directly appointed an attorney for the defendant board members, in effect finding the prosecuting attorney not qualified to represent them. This action was not technically consistent with R.C. 305.14, which provides that the common pleas court may authorize the board of county commissioners to employ legal counsel to assist in the defense of any action or proceeding to which a county board or officer may be a party or has an interest. ³ In addition, R.C. 305.14 contemplates an application by both the prosecuting attorney and the board of county commissioners for appointment of counsel. R.C. 305.17 provides that the board of county commissioners shall fix the compensation of persons appointed or employed pursuant to R.C. 305.14.

Under ordinary circumstances, the common pleas court should not authorize the appointment of counsel for any county board or officer, even with respect to an action pending in the court, unless an application for such appointment is made by both the prosecuting attorney and the board of county commissioners. Application by the prosecuting attorney ordinarily is necessary because the counsel being appointed will fulfill a duty otherwise imposed by law upon the prosecuting attorney. Application by the board of county commissioners is necessary because it is that board which not only must fix the compensation to be paid for the person so appointed but also must provide the necessary funds for that purpose. Where, as here, either the prosecuting attorney or the board of county commissioners refuses to afford counsel to a county board in defense of an action pending against the members of that board, mandamus would be an appropriate remedy to compel the prosecuting attorney and the board to make application to the common pleas court, because failure to do so constitutes an abuse of discretion. Even assuming that the common pleas court erred in the methodology of affording couns...