State Ex Rel. State Teachers Retirement Board v. West Geauga Local School District Board of Education

I respectfully concur with the opinion of the majority in this matter, with respect to the issues it has addressed under the submitted assignments of error, However, it is this writer's position that there is another significant administrative *Page 162 law question that is not analyzed by the majority, that was clearly articulated in appellee Hawken School's brief, which, in this writer's view, merits consideration by this court.

Specifically, appellee (Hawken School) raises the question of whether the filing of a legal action in a state court, in behalf of the State Teachers Retirement Board ("STRB"), requires formal board authorization, or whether this legal undertaking may be validly instituted, in an independent manner, by the decision of the STRB's administrative head acting in conjunction with the assigned Assistant Attorney General.

The STRB is charged with the duty to manage the State Teachers Retirement System ("STRB") and consists of nine members: the Superintendent of Public Instruction, the State Auditor, the Attorney General, five "teacher members," and a "retired teacher member." R.C. 3307.03 and 3307.05. The Attorney General also is the legal adviser of the STRB. R.C. 3307.13. Pursuant to R.C.3307.03, the STRB "may sue and be sued, plead and be impleaded, contract and be contracted with, and do all things necessary to carry out such sections." (Emphasis added.) R.C. 3307.04 expressly permits the STRB to "authorize its administrative officers, or committees composed of board members, to act for the board [the STRB] in accord with such policies [adopted by the STRB] and subject to subsequent approval by the board." (Emphasis added.)

An administrative agency, such as the STRB, may only exercise those powers conferred upon it as expressly stated in the statutory provisions that vest such agency with its powers. TimeWarner AxS v. Pub. Util. Comm. (1996), 75 Ohio St.3d 229, 234,240-241, 661 N.E.2d 1097, 1101-1102, 1105-1107; Hansen v. StatePersonnel Rd. of Rev. (1977), 51 Ohio App.2d 7, 13, 5 O.O.3d 118, 122, 364 N.E.2d 1386, 1390-1391; State ex rel. Funtash v. Indus.Comm. (1951), 154 Ohio St. 497, 43 0.0. 431, 96 N.E.2d 593, paragraph one of the syllabus; Browning-Ferris Industries of Ohio, Inc. v.Mahoning Cty. Bd. of Health (1990), 69 Ohio App.3d 96, 100, 590 N.E.2d 61,63-64. When interpreting the meaning of a statutory provision, R.C. 1.42 states, "Words and phrases shall be read in context and construed according to the rules of grammar and common usage. Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly." In addition, "[t]he first rule of statutory construction is that a statute which is clear is to be applied, not construed. * * * Our obligation is to apply the statute as written." Vought Industries, Inc. v. Tracy (1995), 72 Ohio St.3d 261, 265-266, 648 N.E.2d 1364, 1367. Thus, "the court has a duty to enforce a statute as written and not `"to add to, enlarge, supply, expand, extend or improve the provisions of the statute to meet a situation not provided for'" (quoting State ex ret. Foster v. Evatt [1944], 144 Ohio St. 65, 29 0.0. 4, 56 N.E.2d 265, paragraph eight of the *Page 163 syllabus)." State ex rel. Toledo Blade Co. v. Univ. of ToledoFound. (1992), 65 Ohio St.3d 258, 265, 602 N.E.2d 1159, 1164.

After having reviewed the relevant statutory provisions and applicable case law, it is clear that only under R.C. 3307.04, if at all, one could argue that an entity may initiate a lawsuit on behalf of the STRB, for that section permits the STRB to delegate some of its authority to officers or committees. However, R.C. 3307.04 requires that officers or committees authorized to act for the STRB shall do so only with "subsequent approval by the board." In light of R.C. 1.42, VoughtIndustries, and Univ. of Toledo Found., a court cannot enlarge the powers of the STRB or its agents. Thus, it is my firm conviction that only the STRB may initiate a formal lawsuit,

As a means of comparison, the Ohio Revised Code expressly empowers the State Fire Marshal ("Fire Marshal") to initiate lawsuits, in behalf of the Department of Commerce, for whom he serves. R.C. 3737.46, 3737.21, and 3737.22. More importantly, unlike R.C. 3307.04, the fire marshal possesses the authority to initiate any lawsuit necessary to enforce the state fire code without any approval by the Department of Commerce. See R.C.3737.46 and 3737.22. My position is best illustrated by the language contained in R.C. 3737.46, which states:

"Upon the request of the fire marshal, * * * the attorney general, the legal officer of any county or municipal corporation, or the law director of a township * * shall bring an action for an injunction, temporary or permanent, or any other appropriate proceedings against any person violating or threatening to violate any provision of the state fire code or any order issued pursuant thereto in the court of common pleas in the county where the violation is occurring or threatened to occur."

This passage vests the Fire Marshal with broad powers to initiate a lawsuit against any individual who has violated or threatens to violate the state fire code. Importantly, the Fire Marshal may initiate such suit without the prior approval of any other entity. It is obvious that no such parallel language is found in R.C. 3307.04, or for that matter, in any other statutory section in R.C. Chapter 3307. This writer is mindful that other similar administrative statutory references could be made to support this position.

Therefore, it is my belief that only the STRB, acting in accord with its mandated statutory procedures, could initiate any legal action in this matter. *Page 164