Morrow Cty. Airport v. Whetstone Flyers

{¶ 42} I respectfully dissent from the majority's disposition and analysis. The majority opinion concludes that the lease agreement entered into by the airport authority and Whetstone Flyers violates public policy; therefore, the lease is void ab initio. I respectfully disagree, finding that it is the public official's action in entering into the lease that violates public policy, not the lease agreement itself.

{¶ 43} R.C. 2921.42 states:

{¶ 44} "(A) No public official shall knowingly do any of the following:

{¶ 45} "* * *

{¶ 46} "(4) Have an interest in the profits or benefits of a public contract entered into by or for the use of the political subdivision or governmental agency or instrumentality with which he is connected;

{¶ 47} "* * *

{¶ 48} "(E) Whoever violates this section is guilty of having an unlawful interest in a public contract. Violation of division (A)(1) or (2) of this section is a felony of the fourth degree. Violation of division (A)(3), (4), or (5) of this section is a misdemeanor of the first degree."

{¶ 49} The statute clearly addresses the criminal liability of the public official for engaging in acts that violate the statute. The statute does not speak to the effect on the contract itself.

{¶ 50} The majority opinion cites Holland Furnace Co. v.Joy (1934), 16 Ohio Law Abs. 251, holding:

{¶ 51} "A contract malum in se or against public policy cannot be made valid by ratification; but an act or contract which has been declared void by statute for the protection or benefit of a certain party or class of parties is voidable only and is capable of ratification by the acts or silence of the beneficiary or beneficiaries, except when in contravention to any public reason or public policy."

{¶ 52} In the case sub judice, the lease agreement entered into between Whetstone Flyers and the airport authority does not itself violate public policy. Rather, the lease agreement standing alone benefits the public and furthers the interest of the airport authority and the Morrow County Board of Commissioners. It is the actions of Max Craven that have been declared by statute to be unlawful due to his conflicting interest as a member of the airport authority and as a partner in Whetstone Flyers. Therefore, the lease agreement is voidable, not void ab initio. The subsequent resolution by the commissioners passed on November 19, 1986, ratified the agreement, curing the validity of the lease agreement.

{¶ 53} Accordingly, I would overrule appellant's first and second assignments of error and affirm the trial court's April 5, 2004 judgment entry granting summary judgment in favor of Whetstone Flyers.