Although I concur in the result reached in the majority opinion, I do not concur in the entirety of the opinion since I find some of the language is overbroad and the opinion does not appear to address the underlying issue raised by appellants.
This is not simply an ordinary tort claim predicated upon breach of a general statutory duty. Rather, the appellants, in their amended complaint, raise three claims for relief: the first seeks damages for unlawful conduct of appellee which appellants characterize as a claim for conversion; the second is for damages allegedly resulting from intentional concealment of the true state of facts as to taxable value of electric companies which appellants characterize as concealment of the unlawful conduct; and the third is for an alleged breach of fiduciary obligations arising from an alleged agency relationship between the parties which appellants characterize simply as breach of duty.
I concur in the majority finding that this case does not present a standing issue, which means that if appellants stated a claim for relief, they have standing to maintain that action in the Court of Claims. However, any error on the part of the trial court in mischaracterizing the issue as one of standing is not prejudicial, since appellants are not prejudiced by the dismissal if they have not stated a claim for relief in their amended complaint.
At the outset, it is established that appellee engaged in unlawful conduct adopting an unauthorized and unlawful formula for determining the taxable value of "non-situsable" public utility property located in each of appellants' school districts which resulted in each of appellants receiving less revenue from the tax imposed upon public utility property than it would have received had the "non-situsable" property been properly valued for tax purposes. See Condee v. Lindley (1984), 12 Ohio St. 3d 90, 12 OBR 79, 465 N.E.2d 450. The Supreme Court has also held, however, that appellants' boards of education have no right of appeal from the tax commissioner's determination certifying valuation of tangible personal property, including the public utility property. Avon Lake City School Dist. v. Limbach (1988),35 Ohio St. 3d 118, 518 N.E.2d 1190. *Page 176
The majority opinion states that "* * * appellee breached no duty to appellants * * *" and that "[t]he laws pertaining to the valuation and allocation of public utility personal property create no duty on the part of the tax commissioner toward the school districts. * * *" Such statements are overbroad and are not necessary in the majority opinion even to justify the theory that the case turns upon the existence of a duty in the tort sense. As the majority notes, a duty in the tort sense is a duty to conform to a specific standard of conduct. Here, there was a specific duty upon the agency involved, the tax commissioner, to determine the value of public utility personal property in a certain manner, which duty the Supreme Court held in Condee,supra, was not properly fulfilled. In Avon Lake, the Supreme Court found not that the tax commissioner owed no duty to appellants but, instead, that the pertinent statute involved, R.C. 5717.02, confers no right of appeal upon appellants from the determination by the tax commissioner upon the public utility tax assessments made by the tax commissioner solely because neither a school district nor a school board is a "person interested" within the contemplation of R.C. 5717.02, stating at 120,518 N.E.2d at 1192, "[w]e construe `any person interested therein' to mean a person interested in the public utility, such as an owner thereof, and not to mean a person interested in the assessment." Although the Supreme Court queried as to whether a school board is a person within the contemplation of the definition of R.C. 5701.01, the court nevertheless recognized that a school board has an interest in the public utility tax assessments made by the tax commissioner.
R.C. 5727.23 makes it quite clear that the "assessment" by the tax commissioner is of the value of property, not of the amount of taxes to be collected. Rather, the taxes which are levied upon the property are the rates levied and collected on real property in the taxing district. Thus, the taxes are those levied by the local district through its school board either by the board or by a vote of the electorate and essentially are the same as any real estate tax levy inuring to the benefit of the school district and school board. Thus, there is a "duty" of the tax commissioner to make an annual certification to the county auditor so that the tax levies of the various school districts, as well as other taxing units, can be levied upon the public utility property and collected so as to inure to the benefit of the school district. Essentially, what appellants contend is that the certification was of the wrong amount and, accordingly, their levies produced less revenue than they should have, had the right valuation been certified.
Even though there is a duty, it does not necessarily follow that appellants have a claim in tort. Obviously, under the statute involved, the determination of the assessments by the tax commissioner involves the exercise of a high degree of official judgment or discretion, the type of exercise of executive or administrative function for which R.C. 2743.02 does not impose liability under the rule of Reynolds v. State (1984), 14 Ohio St. 3d 68, 14 OBR 506, 471 N.E.2d 776. Accordingly, regardless of the various allegations of appellants, they have not stated a claim for relief cognizable in the Court of Claims pursuant to R.C. 2743.02, which provides that the state's liability shall be determined in accordance with the same rules of law applicable to suits between private parties.
As to the agency issue, I generally concur in the reasoning in the majority opinion that, as a matter of law, there is no agency relationship between appellants and the tax commissioner. *Page 177 Such agency relationship appears to be the foundation for appellants' claims. As to the claim for concealment, it is nothing more than another means of asserting the claim predicated upon error of judgment. To the extent that the alleged concealment is predicated upon the failure of the tax commissioner to comply with the various requirements of R.C. Chapter 119, including the publication requirements, there is no claim for relief. To the extent that the under-valuation is a result solely of a failure to publish a rule, appellants have sustained no damage. Had the rule been properly promulgated and published, appellants would have received no more than they received by application of the rule without its being properly promulgated and published. There simply is no "injury" to appellants as a result of noncompliance with R.C. Chapter 119 but, instead, appellants seek a "windfall" which they would not have enjoyed had R.C. Chapter 119 been strictly complied with. Thus, noncompliance with R.C. Chapter 119 affords no basis for relief to appellants.
For these reasons, I concur in the majority conclusion that appellants have not stated a claim for relief against the state predicated upon misconduct of the tax commissioner in assessing and evaluating public utility property. Accordingly, I concur in the judgment.