State ex rel. Ames v. Geauga Cty. Bd. of Revision

[Cite as State ex rel. Ames v. Geauga Cty. Bd. of Revision, 2022-Ohio-2281.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY
STATE OF OHIO ex rel. CASE NO. 2021-G-0039
BRIAN M. AMES,
Relator-Appellant, Civil Appeal from the
Court of Common Pleas
-v-
GEAUGA COUNTY Trial Court No. 2021 M 000305
BOARD OF REVISION,
Respondent-Appellee.
OPINION
Decided: June 30, 2022
Judgment: Affirmed
Brian M. Ames, pro se, 2632 Ranfield Road, Mogadore, OH 44260 (Relator-Appellant).
James R. Flaiz, Geauga County Prosecutor, and Linda M. Applebaum, Assistant
Prosecutor, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH 44024 (For
Respondent-Appellee).
MARY JANE TRAPP, J.
{¶1} Appellant, Brian M. Ames (“Mr. Ames”), appeals the judgments of the
Geauga County Court of Common Pleas granting summary judgment to appellee,
Geauga County Board of Revision (the “BOR”), and denying his motion for summary
judgment regarding his claim under R.C. 121.22, i.e., the Open Meetings Act (the “OMA”).
{¶2} Mr. Ames asserts two assignments of error, contending that the trial court
erred (1) by finding that deputy treasurers and auditors may participate and act as
members of a county board of revision rather than as appointed members of a hearing
board, and (2) by denying his motion for summary judgment and granting the BOR’s
motion for summary judgment.
{¶3} After a careful review of the record and pertinent law, we find as follows:
{¶4} (1) The trial court did not err by finding that deputy treasurers and auditors
may participate and act as members of a county board of revision and not merely as
appointed members of a hearing board. Construing R.C. 5715.02 and R.C. 3.06(A)
harmoniously and in proper context, we conclude that deputies of the county treasurer
and auditor may perform any duties of their respective principals, including any duties
associated with the board of revision.
{¶5} (2) The trial court did not err by denying Mr. Ames’ motion for summary
judgment and granting the BOR’s motion for summary judgment. Mr. Ames’ assigned
error is premised on the same argument asserted above. Since Mr. Ames’ proposed
construction of the statute is incorrect, he has necessarily failed to demonstrate reversible
error regarding the trial court’s summary judgment determinations.
{¶6} Thus, we affirm the judgments of the Geauga County Court of Common
Pleas.
Substantive and Procedural History
{¶7} The BOR is a county board of revision established pursuant to R.C.
5715.01(B). During 2020, the BOR consisted of the county treasurer (Christopher P.
Hitchcock), the county auditor (Charles E. Walder), and a member of the board of the
county commissioners (Timothy C. Lennon). See R.C. 5715.02.
{¶8} The BOR itself handles all matters under its authority and has not created
separate hearing boards, as R.C. 5715.02 authorizes. The county treasurer and auditor
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both have several deputies that they have authorized to periodically appear in their places
at BOR meetings.
{¶9} On January 13, 2020, the BOR held a meeting at the auditor’s conference
room. The county treasurer, auditor, and commissioner did not appear. Rather, chief
deputies appeared on behalf of the county treasurer and auditor, and the county
administrator appeared on behalf of the county commissioner. During this meeting, the
deputies and county administrator proposed, seconded, and passed resolutions
appointing a chairperson, a vice chairperson, and alternate members of the BOR;
authorizing the county auditor to act on the BOR’s behalf in appeals; engaging a real
property consultant; and authorizing the remission/refund of late-payment penalties.
{¶10} Mr. Ames is a resident of Randolph Township in Portage County. In 2021,
Mr. Ames, pro se, filed a single count “verified complaint in mandamus, declaratory
judgment, and injunction for enforcement of R.C. 121.22” against the BOR in the Geauga
County Court of Common Pleas.
{¶11} Mr. Ames contended that the BOR failed “to conduct official business in an
open meeting” in violation of R.C. 121.22(C). He alleged that there was no quorum at the
January 2020 meeting because the county treasurer, auditor, and commissioner were not
present and because the deputies and county administrator could not lawfully make
motions, second motions, or vote at the meeting. Therefore, all actions taken at the
meeting were invalid pursuant to R.C. 121.22(H). Mr. Ames requested a finding that the
BOR violated the OMA; an injunction “enjoining” the BOR to comply with the OMA; a civil
forfeiture of $500; court costs; and reasonable attorney fees.
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{¶12} The BOR filed a motion to dismiss Mr. Ames’ mandamus claim pursuant to
Civ.R. 12(B)(6) for lack of standing, which Mr. Ames opposed. The trial court filed a
judgment entry denying the BOR’s motion to dismiss. The BOR subsequently filed an
answer.
{¶13} Following written discovery, both parties moved for summary judgment.
The trial court filed a judgment entry granting the BOR’s motion for summary judgment
and a subsequent judgment entry denying Mr. Ames’ motion for summary judgment.
Most relevant here, the trial court stated as follows:
{¶14} “While R.C. 5715.02 identifies the County Treasurer and the County Auditor
as BOR members, it does not: (1) limit membership to the elected officials personally; (2)
require personal participation by the elected officials; or (3) prohibit a deputy treasurer or
a deputy auditor from participating and acting as members. See R.C. 5715.02.
{¶15} “The BOR membership statute does not limit or conflict with legislative
provisions allowing the county treasurer and auditor to appoint deputies to perform ‘any
duties.’ See R.C. 3.06(A); R.C. 5715.02. Since (1) the duties of the County Treasurer
and the County Auditor include membership on the BOR; and (2) the County Treasurer
and the County Auditor have the power to appoint deputies to perform ‘any duties;’ they
may assign BOR membership to a deputy treasurer and deputy auditor. See R.C.
3.06(A); R.C. 5715.02.”1
{¶16} Mr. Ames appealed and asserts the following two assignments of error:
1. In its first judgment entry, the trial court notified Mr. Ames that it intended to hold a hearing on sanctions
for frivolous conduct. Following that hearing, the trial court found that Mr. Ames’ filing of his claim
constituted frivolous conduct and awarded attorney fees to the BOR. Mr. Ames’ appeal of that judgment is
before us in case no. 2022-G-0021.
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{¶17} “[1.] The trial court erred by finding that a deputy treasurer or a deputy
auditor may participate and act as members of county board of revision [sic] rather than
as appointed members of a hearing board.
{¶18} “[2.] The trial court committed reversible error by denying Mr. Ames’ Motion
for Summary Judgment and granting the BOR’s.”2
Appointment of Deputies
{¶19} In his first assignment of error, Mr. Ames contends that the trial court erred
by finding that deputy treasurers and auditors may participate and act as members of a
county board of revision rather than as appointed members of a hearing board.
{¶20} Mr. Ames’ assigned error involves the construction and application of
statutory language, which is a question of law that we review de novo. Rancho Cincinnati
Rivers, L.L.C. v. Warren Cty. Bd. of Revision, 165 Ohio St.3d 227, 2021-Ohio-2798, 177
N.E.3d 256, ¶ 11.
{¶21} In construing statutes, a court’s paramount concern is the legislative intent
in enacting the statutes. State ex rel. Heffelfinger v. Brunner, 116 Ohio St.3d 172, 2007-
Ohio-5838, 876 N.E.2d 1231, ¶ 35. To discern this intent, we consider the statutory
language, reading words and phrases in context and construing them in accordance with
rules of grammar and common usage. Id.; see R.C. 1.42. Courts must construe statutory
provisions together and read the Revised Code as an interrelated body of law. State v.
Pribble, 158 Ohio St.3d 490, 2019-Ohio-4808, 145 N.E.3d 259, ¶ 12. A court must
harmonize and give full application to all statutes concerning the same subject matter
2. In case no. 2022-G-0001, the BOR appealed the trial court’s denial of its motion to dismiss. We
dismissed that appeal upon the BOR’s request.
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unless they are irreconcilable and in hopeless conflict. Id. Where the language of a
statute is clear and unambiguous, it is the duty of the court to enforce the statute as
written, making neither additions to the statute nor subtractions therefrom. Hubbard v.
Canton City School Bd. of Edn., 97 Ohio St.3d 451, 2002-Ohio-6718, 780 N.E.2d 543, ¶
14.
{¶22} Mr. Ames’ claim is based on R.C. 5715.02, which states, in relevant part:
{¶23} “The county treasurer, county auditor, and a member of the board of county
commissioners selected by the board of county commissioners shall constitute the county
board of revision, or they may provide for one or more hearing boards when they deem
the creation of such to be necessary to the expeditious hearing of valuation complaints.
Each such official may appoint one qualified employee from the official’s office to serve
in the official’s place and stead on each such board for the purpose of hearing complaints
as to the value of real property only, each such hearing board has the same authority to
hear and decide complaints and sign the journal as the board of revision, and shall
proceed in the manner provided for the board of revision by sections 5715.08 to 5715.20
of the Revised Code.” (Emphasis added.)
{¶24} Mr. Ames contends that the county treasurer and auditor may only appoint
deputies to a hearing board and for the sole purpose of hearing valuation complaints.
They may not appoint deputies to conduct board of revision meetings or any other
business. Since the BOR admittedly did not create any hearing boards, the deputy
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treasurer and auditor had no authority to hold or conduct business at the BOR’s January
2020 meeting.3
{¶25} We agree that R.C. 5715.02 permits the county treasurer and auditor to
appoint deputies to a hearing board for the purpose of hearing valuation complaints.
However, we disagree that R.C. 5715.02 exclusively governs a deputy’s authority in
relation to the board of revision.
Valuation Hearings; R.C. 5715.02
{¶26} R.C. 5715.02 permits the board of revision to create separate hearing
boards to hear valuation complaints, if deemed necessary. It also permits each official
on the board of revision to appoint a qualified employee from its office to serve in its place
on the board of revision or, alternatively, on separate hearing boards, for the purpose of
hearing valuations complaints.
{¶27} The General Assembly did not define the term “employee” for purposes of
R.C. 5715.02. In ordinary usage, the word “employee” means “one employed by another
usually for wages or salary and in a position below the executive level.” Merriam-Webster,
https://www.merriam-webster.com/dictionary/employee (accessed June 15, 2022).
{¶28} Here, the county auditor is authorized to “appoint one or more deputies to
aid him in the performance of his duties.” R.C. 319.05. Similarly, the county treasurer is
authorized to “appoint one or more deputies.” R.C. 321.04. Deputies are appointed by,
and serve at the pleasure of, the county treasurer and auditor, see R.C. 3.06(A), and the
3. The Supreme Court of Ohio has twice declined to address similar arguments made by Mr. Ames. See
State ex rel. Ames v. Portage Cty. Bd. of Revision, 166 Ohio St.3d 225, 2021-Ohio-4486, 184 N.E.3d 90(affirming this court’s dismissal of Mr. Ames’ mandamus petition for lack of standing); State ex rel. Ames v.
Geauga Cty. Bd. of Revision, 165 Ohio St.3d 1488, 2021-Ohio-4409, 178 N.E.3d 518 (dismissing Mr. Ames’
mandamus petition as moot).
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county treasurer and auditor set their deputies’ compensation. See R.C. 325.17. In
addition, sections of the revised and administrative codes refer to deputies as
“employees.” See, e.g., R.C. 325.17 (authorizing the county auditor and treasurer to
“appoint and employ the necessary deputies * * * or other employees for their respective
offices”); Ohio Adm.Code 123:1-47-01(A)(27) (“For purposes of Chapters 123:1-1 to
123:1-47 of the Administrative Code * * * ‘[d]eputy’ - means an employee authorized by
law to act generally for or in place of his or her principal and holding a fiduciary relationship
to such principal * * *”) (Emphasis added.)
{¶29} We conclude that deputies of the county treasurer and auditor are
“employees,” as commonly defined. Accordingly, the county treasurer and auditor may
appoint deputies to serve in their places on the board of revision or on separate hearing
boards for the purpose of hearing valuation complaints.
{¶30} This determination is not dispositive, however, because the BOR’s January
2020 meeting was not a hearing on a valuation complaint. Rather, it involved
organizational and administrative matters. Therefore, we must determine the scope of a
deputy’s authority in relation to the board of revision.
Deputies; R.C. 3.06(A)
{¶31} R.C. 5715.02 addresses the appointment of an “employee” for the purpose
of hearing valuation complaints. By contrast, R.C. 3.06 governs “deputies” of elected
officials. R.C. 3.06(A) expressly provides that “[a] deputy, when duly qualified, may
perform any duties of his principal.” (Emphasis added.)
{¶32} As the trial court aptly noted, “[a]n employee is not necessarily a deputy.”
This court has defined a “‘deputy’” as “‘[a] substitute’”; “‘a person duly authorized by an
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officer to exercise some or all of the functions pertaining to the office, in the place and
stead of the latter’”; and “‘[o]ne appointed to substitute for another with power to act for
him in his name or behalf.’” Lake Cty. Auditor v. Evans, 11th Dist. Lake No. 7-220, 1980
WL 352264, *1 (Sept. 29, 1980), quoting Black’s Law Dictionary. Thus, the relationship
between a deputy and his or her principal involves “something more than the ordinary
relationship of employer and employee.” In re Termination of Employment of Pratt, 40
Ohio St.2d 107, 114, 321 N.E.2d 603 (1974). Specifically, a deputy has a fiduciary
relationship to his or her elected principal. See id.; Ohio Adm.Code 123:1-47-01(A)(27)
(“‘Deputy’ - means an employee authorized by law to act generally for or in place of his
or her principal and holding a fiduciary relationship to such principal * * *”) (Emphasis
added.)
{¶33} In addition, while the board of revision is required to hear and investigate
complaints regarding the “valuation” of real property, see R.C. 5715.11, R.C. 5715.02,
and DTE Form 1, this is not the full extent of its statutory duties. For instance, the board
of revision is also required to hear and investigate complaints regarding the “assessment”
of real property. See R.C. 5715.11; DTE Form 2. The board of revision is further required
to “organize annually on the second Monday in January by the election of a chairman for
the ensuring year.” R.C. 5715.09. The county auditor serves as the secretary of the
board of revision and is required to “call the board together as often as necessary during
any year, keep an accurate record of the proceedings of the board in a book kept for the
purpose, and perform such other duties as are incidental to the position.” Id.{¶34} Mr. Ames contends that R.C. 3.06(A) only permits deputies to perform an
elected official’s “duties” as opposed to its “powers.” Mr. Ames cites no authority in
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support of this proposition, and the statutory text does not reasonably support it. R.C.
3.06(A) uses the phrase “any duties.” The term “‘[a]ny’ is often used as meaning ‘all.’”
Wachendorf v. Shaver, 149 Ohio St. 231, 240, 78 N.E.2d 370 (1948). Thus, the text of
R.C. 3.06(A) does not exclude duties arising from the “powers” of elected office.
{¶35} The Ohio Attorney General expressed a view similar to Mr. Ames’ argument
in a 1925 opinion, stating that “a deputy may perform a purely ministerial duty of his
principal but * * * he may not exercise a duty enjoined upon his principal which is of a
judicial or quasi-judicial nature or a duty requiring the exercise of judgment or discretion.”
(Emphasis added.) 1925 Ohio Atty.Gen.Ops. No. 2573, at 407. The attorney general
determined that the statutory duties of a county board of revision met these criteria;
therefore, it advised that a deputy treasurer or auditor could not act in the place of a
treasurer or auditor. Id. at 408.
{¶36} The attorney general reached the opposite conclusion in a 1944 opinion,
effectively overruling its prior opinion. See 1944 Ohio Atty.Gen.Ops. No. 6935, at 278.
At that time, G.C. 9 (now R.C. 3.06(A)) provided that “‘[a] deputy, when duly qualified,
may perform all and singular the duties of his principal.’” (Emphasis added.) 2006 Ohio
Atty.Gen.Ops. No. 2006-042, at 2-413, fn. 4, quoting G.C. 9 of the 1910 General Code.
{¶37} Most recently, the attorney general has opined that “a deputy county auditor
appointed to serve in the place of the county auditor on the county board of revision or on
a hearing board of the county board of revision * * * holds a public office.” 2016 Ohio
Atty.Gen.Ops. No. 2016-024, slip. op. at 3. Although not binding, the attorney general’s
opinion is consistent with Ohio law. The Supreme Court of Ohio has long held that “[i]f
official duties are prescribed by statute, and their performance involves the exercise of
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continuing, independent, political or governmental functions, then the position is a public
office,” even if the position is filled by appointment, rather than election. State ex rel.
Landis v. Bd. of Commrs. of Butler Cty., 95 Ohio St. 157, 159, 115 N.E. 919 (1917).
{¶38} In addition, a county treasurer and auditor may require its deputies to post
a bond, and they are answerable for their deputies’ neglect or misconduct in office. See
R.C. 3.06(A); R.C. 319.05 (“The auditor and his sureties shall be liable for the acts and
conduct of such deputies”); R.C. 321.04 (“Each county auditor * * * shall be liable and
accountable for their [deputies’] proceedings and misconduct in office”).
{¶39} Construing R.C. 5715.02 and R.C. 3.06(A) harmoniously and in proper
context, we conclude that deputies of the county treasurer and auditor may perform any
duties of their respective principals, including any duties associated with the board of
revision. Accordingly, the trial court did not err by finding that deputy treasurers and
auditors may participate and act as members of a county board of revision and not merely
as appointed members of a hearing board.
{¶40} Mr. Ames’ first assignment of error is without merit.
Summary Judgment
{¶41} In his second assignment of error, Mr. Ames contends that the trial court
erred by denying his motion for summary judgment and granting the BOR’s motion for
summary judgment.
{¶42} We review a trial court’s summary judgment orders de novo. Sabo v.
Zimmerman, 11th Dist. Ashtabula No. 2012-A-0005, 2012-Ohio-4763, ¶ 9. A reviewing
court will apply the same standard a trial court is required to apply, which is to determine
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whether any genuine issues of material fact exist and whether the moving party is entitled
to judgment as a matter of law. Id.{¶43} Mr. Ames’ second assigned error is premised on the same argument
asserted in his first, i.e., that deputy treasurers and auditors may not exercise the authority
of the elected officials comprising the board of revision. Since the elected officials did not
appear at the BOR’s January 2020 meeting, there was no quorum. Therefore, the BOR
violated the OMA, which entitles him to an injunction, a civil forfeiture, and court costs.
{¶44} As explained above, Mr. Ames’ proposed statutory construction is incorrect.
Therefore, Mr. Ames has necessarily failed to demonstrate reversible error regarding the
trial court’s summary judgment determinations.
{¶45} Mr. Ames’ second assignment of error is without merit.
{¶46} For the foregoing reasons, the judgments of the Geauga County Court of
Common Pleas are affirmed.
THOMAS R. WRIGHT, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.
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