{¶ 21} I respectfully dissent from the majority opinion which reverses and dismisses this matter. I disagree with the majority's interpretation of the complaint as stating a cause of action within the exclusive jurisdiction of SERB and the majority's determination to dismiss the taxpayer's action on their finding that the plaintiffs failed to sufficiently establish a "public benefit," although the jury found otherwise.
{¶ 22} The Ohio Supreme Court has delineated only two distinct areas in which SERB possesses exclusive jurisdiction, the first being "where one of the parties files charges with SERB alleging an unfair labor practice under R.C. 4117.11." Id.
{¶ 23} Plaintiffs did not file an unfair labor practice with SERB concerning the matters which gave rise to this lawsuit.
{¶ 24} The alternative area that vests SERB with exclusive jurisdiction is when "a complaint brought before the court of common pleas alleges conduct that constitutes an unfair labor practice specifically enumerated in R.C. 4117.11." Id.
{¶ 25} The City believes that the pleadings essentially allege unfair labor practices arising under R.C. 4117.11(A)(1), (2), (5), and (8). I do not find that those provisions correspond to plaintiffs' claims. Additionally, plaintiffs pursued this action against the City in their capacities as taxpayers; that is, a claim that is recognized both by statute and common law.State ex rel. Citizens for a Better Portsmouth v. Sydnor (1991), 61 Ohio St. 3d 49. *Page 376
{¶ 26} Even if plaintiffs could have pursued an unfair labor practice in their capacity as employees essentially arising from the same set of facts, this does not in and of itself automatically foreclose a viable taxpayer claim.22 In other words, these claims are not mutually exclusive such that the existence of one necessarily eliminates the potential for bringing the other.
{¶ 27} Lastly, I disagree with the majority's analysis and determination to dismiss the taxpayer's action for the alleged lack of a "substantial benefit to the public."
{¶ 28} In order to maintain a taxpayer's suit, "it is only necessary to show that the action of the city, as alleged, was an abuse of corporate power and that this abuse is prejudicial and injurious to [plaintiffs'] rights as a taxpayer and others of [their] class." Brauer v. Cleveland (1963), 119 Ohio App. 159,164. For that reason, this Court has further determined that it is not necessary for a plaintiff taxpayer to exhaust personal administrative remedies if such would not benefit the class represented. Id.
{¶ 29} The Ohio Supreme Court has held an action is properly categorized as a "taxpayer's action" where the plaintiff is seeking to benefit the general public "regardless of any privateor personal benefit" that the plaintiff may receive. White v.Cleveland (1973), 32 Ohio St. 2d 37, emphasis added. Therefore, it is inappropriate to focus solely upon the monetary damages sought in this action. Instead, we must discern from the claims whether plaintiffs as taxpayers sought to benefit the general public through this action.
{¶ 30} The City referred to Cleveland ex rel. O'Malley v.White (2002), 148 Ohio App. 3d 564, claiming that it is dispositive on the standing issue. However, in O'Malley, this Court concluded that no public right was involved based on its finding that "the City was in full compliance with the bidding process." Id. at 571. In contrast, the majority in this case acknowledges that a public right is involved but then concludes that it is not substantial enough to maintain the taxpayer's action. I cannot agree, particularly in light of the jury's findings, unchallenged in this appeal, as set forth in their responses to jury interrogatory nos. 4-6.
{¶ 31} Furthermore, other courts have rejected the same argument advanced by the City herein where it was determined that the City's actions were deemed an abuse of corporate power.Cincinnati ex rel. Simons v. Cincinnati (1993), *Page 377 86 Ohio App. 3d 258, 265, distinguishing State ex rel. Casper v. Dayton (1990),53 Ohio St. 3d 16, holding that a taxpayer's lawsuit "benefitted the city as a whole by protecting the integrity of the civil service system and ensuring its fairness" despite personal benefit that inured to plaintiffs. Applying the law to the facts and findings in this case, I can only conclude that the trial court did not err in denying the City's motion to dismiss and for summary judgment on this issue.
{¶ 32} Based upon the foregoing, I believe the trial court properly retained jurisdiction over this matter and find, as the jury ultimately did, that the plaintiffs established a public benefit sufficient to sustain the taxpayer's action. I would affirm the judgment of the trial court in these respects and proceed to address the remaining issues raised in the appeal and cross-appeal.
APPELLANT'S ASSIGNMENTS OF ERROR "I. The trial court erred by retaining jurisdiction in amatter that was patently, unambiguously and admittedly foundedupon an alleged unfair labor practice under [R.C. Chapter]4117." "II. The trial court erred in its May 6, 2002 judgment entryoverruling appellant's motion to dismiss by failing to rule onappellant's `standing' argument and by subsequently refusing toreconsider that issue in light of this court's decision in Cityof Cleveland ex rel. O'Malley v. White." "III. The trial court erred by overruling appellant's motionin limine regarding testimony, evidence and damages presented tothe jury after the Assistant Chiefs were returned to thebargaining unit on April 1, 1998." "IV. The trial court lacked jurisdiction to hear count two ofthe complaint, the taxpayers' suit, as actions in equity cannotbe maintained when there is an adequate remedy at law." "V. Count two of the plaintiff's complaint, the taxpayers'suit, is barred by the doctrine of laches since plaintiffs didnot file the claim until eleven years after the alleged violationoccurred." *Page 378 "VI. Plaintiffs' failure to exhaust their administrativeremedies with SERB precludes them from filing an original actionwith Common Pleas court [sic]."
CROSS-APPELLANTS' ASSIGNMENTS OF ERROR "I. The trial court erred by determining that it did not havejurisdiction to restore the wage differential between the ranksof assistant chief and Battalion Chief to 32% effective October1, 2002." "II. The trial court erred by finding that (a) the firefighters and the assistant chiefs failed to provide security forthe costs of the proceeding; and (b) the statutorily basedtaxpayer action was converted to a common-law taxpayer action." "III. The trial court erred by denying the motion for attorneyfees filed by the fire fighters and the assistant chiefs." "IV. The trial court erred by finding that [R.C.] 2744.09(C)does not apply to a taxpayer action."
It is ordered that the appellant recover from appellees costs herein taxed.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
22 It is significant to note that the jury ultimately found that these facts established an abuse of power by the City resulting in prejudice and injury to the rights of the taxpayers and contrary to municipal interests. The City has not challenged this finding on appeal.