[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 232 DECISION AND JUDGMENT ENTRY {¶ 1} In his second amended complaint, relator, Ralph E. Trussell, Sheriff of Meigs County, seeks a writ of mandamus to compel respondents, the Board of County Commissioners of Meigs County and its members, individually, to fund his office for fiscal year 2003 in the full amount listed in his request for appropriations and to retroactively fund approximately $140,000 expended by the sheriff's office in fiscal year 2002 without an appropriation. He alleges that the board has a clear duty to fully fund the mandatory, statutorily-imposed duties of his office (1) under the constitutional doctrine of "separation of powers"; (2) that the board has abused its discretion by failing to appropriate the amounts he requested to fund both his mandatory and non-mandatory duties; (3) that the board has a duty to fund the mandatory duties of county government, including mandated duties of his office, before funding non-mandatory duties; and (4) that the board cannot not evade its duty by pleading financial hardship.
CONCLUSION {¶ 2} Because we find that the board had no duty to appropriate all the funds requested by the sheriff under the separation of powers doctrine, that no special statute requires full funding of the office of sheriff, and that the board did not abuse its abuse its discretion by appropriating a lesser amount than the sheriff requested, we deny the writ.
FACTS {¶ 3} For 2002, the sheriff requested $738,384.50 to operate his office.1 The *Page 233 board appropriated $651,963.622, 88.3% of the amount requested. As a result, the sheriff states that, in October 2002, he was forced to lay off eleven of nineteen employees, close his office from 2:00 a.m. to 6:00 a.m. each weeknight and all day Sunday, that he was "otherwise prevented from meeting my mandatory and day-to-day responsibilities," and that the necessary expenses of his office exceeded the appropriation by "approximately $140,000".3
{¶ 4} For 2003, the sheriff requested a total appropriation of $867,341.50.4 The board appropriated $537,188.71, 62% of the amount requested, and 17.6% less than was appropriated in 2002. However, the sheriff alleges that his actual operating budget is only $271,179 for 2003 "due, in part, to the * * * [board's] encumbering $200,000 of the net appropriation for prisoner housing, medical care and meals and charging over $64,000 in 2002 expenditures to my 2003 budget."5
{¶ 5} The sheriff also alleges that his office is severely understaffed and ill equipped. He alleges, and the board does not dispute, that the office's law enforcement division is understaffed by 7.5 officers — three road officers, one and one-half process servers, and three school resource/D.A.R.E. officers;6 that the corrections division7 is understaffed by four corrections officers, one contract physician, and one contract nurse;8 that the court services division is understaffed by a half-time officer;9 that the communications division is understaffed by four communications officers/dispatchers;10 and that training expenses will exceed $15,000.11 The appropriation for salaries, except that of the sheriff, which *Page 234 is fixed by statute, has apparently been expended with the reported laying off of all employees in June 2003.
{¶ 6} The sheriff further alleges, inter alia, that:(1) the fleet of vehicles for the office is aged (the newest vehicles being 1998 models),12 (2) the average mileage per vehicle is 132,023 miles,13 (3) the vehicles lack routine maintenance and "fail to meet mileage standards for even secondary response cruisers,"14 and (4) the sheriff's office space is too small, inadequately heated and air-conditioned, ill supplied, and dilapidated in the sense that necessary equipment has not been acquired and outworn or damaged equipment has not been replaced or repaired.15 The sheriff has supplied a list of necessary equipment he claims is needed, but without providing dollar amounts.16 The board disputes these claims only by arguing that the heating system was promptly repaired when it broke down.17
{¶ 7} Except as stated above, the board does not generally deny most of the sheriff's specific allegations. It relies, generally, on the fact that it, and not the sheriff, is the final authority as to the sheriff's budget, and states that, because of anticipated revenue loss of $384,834.0618 in 2003, it did not abuse its discretion by applying an across-the-board budget cut to the sheriff's office, which it alleges was actually only a 10% budget cut because the $200,000 the sheriff requested for operation of the jail was fully funded.19 We agree.
ANALYSIS I {¶ 8} To be entitled to a writ of mandamus, the sheriff must show a clear right to relief, that the board is under a clear duty to provide that relief, and that he has no plain and adequate remedy in the ordinary course of law.20 He first argues that the board must fund his request for the reasonable and necessary expenses of his office because the constitutional "separation-of-powers" doctrine *Page 235 requires it to do so. He cites much authority for this proposition. However, the authority breaks down into two categories: cases involving disputed appropriations requested by courts,21 and cases involving disputed appropriations requested by judicial and executive offices in which a special statute conferred authority on the office, not the general appropriating authority, to determine the reasonable and necessary expenses of the office.22 In the latter instance, the general appropriating authority has the burden of proving that the request is an abuse of discretion, i.e. is arbitrary, unreasonable, or unconscionable.23
Separation of Powers {¶ 9} In the context of budgetary disputes, the Supreme Court appears to have first invoked the separation-of-powers doctrine in Stateex rel. Foster v. Bd. of Cty. Cmmrs. of Lucas Cty. (1968),16 Ohio St.2d 89, 242 N.E.2d 884, paragraphs one and two of the syllabus (although it appears that the case was resolvable, and was resolved, under a special statute that required the board of county commissioners to appropriate the funds requested by the court).24 Nevertheless, the court subsequently invoked the constitutional doctrine in Arbaugh,Hoose, and Weaver, all supra, thus establishing its viability. *Page 236
{¶ 10} The sheriff's office is not a court, but he argues that he should receive his full budget request under the separation-of-powers doctrine, like a court, because "[i]t cannot be contended that this rule and the policy behind it do not apply equally to disputes between the legislative and executive branch."25 He cites no authority for this proposition, except statutes placing mandatory law-enforcement duties and judicially related duties on the sheriff's office.
{¶ 11} The Supreme Court has never, so far as we can determine, applied the separation-of-powers doctrine to disputes between the executive and legislative branches. We perceive at least one reason for this: to do so would make every state and local executive-branch office the final authority for appropriating its own budget, absent an abuse of discretion, and deprive the General Assembly and local legislative authorities of their traditional appropriation powers. We do not deny that there may be a certain inequity in carving out an exception for the judicial branch of government, but we are not prepared, in light of existing authority, to extend the doctrine to the executive branch of government in the budgetary context.
{¶ 12} Nor has the sheriff directed us to any statute making him, and not the board, the final authority for appropriations to his office. The board aptly points out that R.C. Chapter 5705 makes it the appropriating authority for county offices. The board also points out that R.C. 5705.28(C)(1) requires it to appropriate the full amount only for offices that "may fix the amount of revenue they are to receive." Thus, the general budgeting statutes recognize the judicially created and statutory exceptions to the board's general appropriating authority. Since the sheriff's office is not one of those exceptions, his argument fails on this point. The board has the final authority to determine the sheriff's budget, absent an abuse of its discretion.
{¶ 13} Thus, we also deny the sheriff's assertion that the board has an affirmative duty to fully fund all mandatory duties of all county offices before funding non-mandatory duties. Absent a constitutional provision or statute requiring full funding, an appropriating authority has discretion over how to fund all budgetary requests.26
Abuse of Discretion {¶ 14} The sheriff also contends that the board abused its discretion by failing to fully appropriate the funds he requested to operate his office, with *Page 237 respect to both his mandatory and non-mandatory duties. To prevail, the sheriff must establish that the requested funding was reasonable and necessary and that the board arbitrarily, unreasonably, or unconscionably refused to appropriate that amount. The burden of proof to establish this claim is on the sheriff. Veterans Svc.Ofc., supra, 61 Ohio St.3d at 463, 575 N.E.2d at 270. Concerning non-mandatory duties, the sheriff argues that "[u]nlike the situation with funding of mandatory duties, the burden of proving an abuse of discretion by a preponderance is on the party challenging the appropriation" [brief, p. 21]. For this assertion, he cites Whitman v.Magee (Dec. 18, 1987), Trumbull App. No. 3938. The citation implies a shifting of the burden of proof to the board in this case, since it is opposing the full appropriation. However, Whitman does not require a shifting of the burden of proof. In that case, the clerk of courts sought a writ of mandamus to compel the board of county commissioners to fully fund her budget request. The trial court found that the board had abused its discretion in failing to make the appropriation and allowed the writ. Concerning the clerk's judicially and non-judicially related duties, the court of appeals held that the clerk had the burden of proof to establish an abuse of discretion, which she successfully carried. The only burden shifting that occurred was that the court held that on appeal the board had the burden of demonstrating that the trial court had erred. Here, we are the trial court. Thus, there is no shifting of the burden of proof.
{¶ 15} The Supreme Court has held that an abuse of discretion in budgetary matters means, as in other areas of law, that the action "implies an unreasonable, arbitrary, or unconscionable attitude." Wilke, supra, 90 Ohio St.3d at 61, 734 N.E.2d at 818. In support of his argument, the sheriff argues that his office has been underfunded since at least fiscal year 2000, that it is and has been understaffed and ill-equipped, that the amount by which appropriations fell below requests for the current fiscal year exceeds prior years, and that the board acted arbitrarily in meeting the anticipated reduction in revenues by simply cutting funding across-the-board without regard to the historic underfunding of his office.
{¶ 16} Additionally, the sheriff compares budgetary records from Hocking, Jackson, Morgan, Perry, and Vinton Counties for fiscal years 2002 and 2003, which reflect a much higher funding level. However, without detailed economic and demographic details to support these comparisons, we give little credence to them.
{¶ 17} The sheriff cites two common pleas court decisions that support his arguments: Abdalla v. Krupinski (Aug 31, 1995), Jefferson C.P. No. 95CV242, and Geauga Cty. Bd. of Cty. Cmmrs. v. Geauga Cty.Sheriff (Nov. 14, 2002), Geauga C.P. No. 01M-001001. In each case, the court found that the board of county *Page 238 commissioners abused its discretion by failing to fund at least major portions of the county sheriff's requested budget.
{¶ 18} In Abdalla, the sheriff sought an injunction and a writ of mandamus for his requested appropriations. The court granted a permanent injunction, prohibiting the board from "denying funding to Plaintiff or otherwise interfering with plaintiff in the execution of his duties as sheriff." We accord little weight to the decision because it recites no facts to support the conclusory assertion that "[t]he budget request submitted in good faith by Plaintiff to Defendants represents reasonable and necessary expenditures for operation of the Jefferson County Sheriff's Department for the year 1995." Moreover, that court misallocated the burden of proof, holding that the board "failed to prove the funds requested by Plaintiff are unreasonable and unnecessary," and that "* * * it is the duty of Defendants to levy taxes and to provide funding in amounts which will allow Plaintiff to fulfill his statutory obligations as Sheriff." We do not believe either of these statements describes the appropriate law in such cases.
{¶ 19} Geauga Cty. Bd. of Cty. Cmmrs. is more informative, but not persuasive. The case began when the board of county commissioners sought a declaratory judgment to compel the sheriff "to operate his office within the appropriations made for it." The sheriff filed a counterclaim for declaratory judgment and a writ of mandamus to compel the board to appropriate requested funds. The case involved funding for fiscal years 2001, 2002, and 2003, and took over one year to resolve. In the end, the court allowed a writ of mandamus granting, in part, the sheriff's requested funding. The court determined for each line item whether the requested amount was reasonable and necessary. In doing so, the court apparently considered financial hardship.
{¶ 20} First, the court noted: "* * * the high priority that is to be given components of the justice system — a primary responsibility of government, including the sheriff, can be found in the extension of these principles to other offices directly related to the administration of justice. See, for example, Reed v. Portage Cty. Bd. ofCommrs. (1985), 30 Ohio App.3d 41, where the court of appeals having jurisdiction over this court held that the commissioners abused their discretion when they appropriated an insufficient amount for salaries for the clerk of courts in the auto title department and affirmed the trial court grant of an extraordinary writ of mandamus."
{¶ 21} Then, the court found, as do we here, that no specific statute required the board to appropriate funds for the sheriff, except as stated in the general appropriating authority of R.C. Chapter 5705. Nevertheless, the court found an abuse of discretion: "Notwithstanding protestation of communication and consultation in the progressive budget process leading to the annual appropriation, the County Commissioners (sic.) failure to account for the increased budgetary needs of the *Page 239 Sheriff, their "across the board" reliance upon history in a system of proportionate appropriation practice, represents a failure to act reasonably in the exercise of their admitted discretion. That the Commissioners did not attend to, and in some cases were totally unaware of, the specific requests and justification of the Sheriff, amounts to a failure to exercise `discretion' as that term is intended in the law. (In the 2001 process the Commissioners failure to attend to the nuances of the delicate negotiations between the Sheriff and the union, OBPA, was an equal want or abuse of discretion.) Failure to consider the evidence of need is a failure to exercise discretion at all, or, at a minimum an abuse of discretion. Under the circumstances extant, including revenue constriction, a process of zero budgeting, or some modification thereof, should have been employed. Their failure, and the consistent failure of each of the parties to effectively negotiate a resolution of their differences, justifies judicial incursion and equitable relief, at least for the years 2002 and the process to date for 2003."
{¶ 22} We do not adopt the court's reasoning. Although the court of appeals in Reed did state that the board abused its discretion by not appropriating the full amount the clerk requested for operation of the auto title department, the decision was clearly based on R.C. 2903.29(B), which required the board to appropriate "an amount sufficient for the prompt discharge of the clerk's duties under Chapter 4505. of the Revised Code." There is no comparable statute involved in this case.
{¶ 23} Moreover, we do not adopt the court's reasoning that "a process of zero budgeting, or some modification thereof, should have been employed." Mandating the precise form of budgetary negotiations is, we believe, an unauthorized and unwise judicial incursion into the budgetary process. The issue is whether the board's action in making across-the-board reductions was "unreasonable, arbitrary, or unconscionable," Wilke, supra, not whether some better approach might have been employed. We hold that across-the-board budget cutting in the face of declining revenues is not unreasonable, arbitrary, or unconscionable per se, or under the facts of this case.
{¶ 24} Nor do we find that the board abused its discretion because it was unaware of the sheriff's claimed understaffing and for equipment needs. Those claims appear to have been reflected in the sheriff's 2003 budgetary requests.27
{¶ 25} Likewise, we find no abuse of discretion in the board's allocating $200,000 of the sheriff's appropriation to jail expenses and transferring "over $64,000" from his 2003 appropriation to cover 2002 expenditures for which no *Page 240 appropriation was made. As the sheriff himself points out, the board is under various mandates to provide adequate jail conditions.28 Moreover, the sheriff does not maintain that either of these allocations of funds is unlawful. Rather, he states that they effectively reduced his 2003 operating budget to $271,179, which "would only be sufficient to maintain an office with one deputy and one dispatcher for each of the three shifts for the entire year, without providing for any operating expenses for those employees."29
{¶ 26} We believe that the board was faced with a hard choice between equally desirable allocations of funds here, given the conditions of financial hardship created by the anticipated revenue reduction of approximately $385,000. We cannot say that the choice it made was an abuse of discretion. Under the statutes, it was the board's choice to make, and if its choice necessitated curtailment of services, the sheriff's office, like other county agencies, had to make that curtailment.30
{¶ 27} The sheriff argues that financial hardship may not be considered when a legislative authority has a duty to provide funding requested, even if no unappropriated funds remain.31 We find two flaws with this argument. First, as we have stated, there is no mandatory duty to provide the sheriff's requested funding. Second, the Supreme Court has stated that financial hardship may be considered, even in cases involving courts or special statutes under which an office determines its own appropriations.32 We deem financial hardship particularly relevant when an abuse of discretion is at issue.
{¶ 28} Finally, we reject the board's assertion that the issues presented are political questions over which this court has no jurisdiction. Our jurisdiction in mandamus is mandatory under Section3(B)(1) of Article IV of the Ohio Constitution. Moreover, all the cited cases, and many more, demonstrate that the courts, however reluctantly, have accepted jurisdiction in mandamus over budgetary matters. It is far too late in the day for this court to decide otherwise. *Page 241
{¶ 29} For the foregoing reasons, we find that the sheriff has not shown a clear right to the funding he requested for the 2002 and 2003 fiscal years, or a clear duty of the board to provide such funding. Therefore, the writ is DENIED.
Harsha, J.: Concurs with Attached Concurring Opinion.
Abele, J.: Concurs in Judgment and Opinion.
Kline, J.: Dissents with Dissenting Opinion.
1 Sheriff's evidence, Tab 1, affidavit of Sheriff Ralph E. Trussell, ¶ 16.
2 Board's evidence, Tab 4.
3 Trussell affidavit, ¶ ¶ 19 and 25.
4 Exhibit A, attached to second amended complaint.
5 Trussell affidavit, ¶ 28.
6 Trussell affidavit, ¶ 37, Table A.
7 The parties seem to agree that $200,000 has been appropriated in fiscal 2003 for jail-related expenses. The sheriff also alleges that the jail was closed in October 2002 and cannot be reopened because of substandard conditions. [Id., ¶¶ 58 and 60] Apparently, the appropriation for prisoners is to be paid, at least in part, to Noble and Washington Counties, with whom the board has contracted to house prisoners. Sheets affidavit, ¶ 15.
8 Trussell affidavit, ¶ 38, Table A.
9 Id., ¶¶ 39 and 41.
10 Id., ¶ 40.
11 No funds were appropriated for training in 2003. Board's evidence, Tab 5.
12 Trussell affidavit, Table B.
13 Id., ¶ 46.
14 Id., ¶ 47.
15 Id., ¶¶ 51-56.
16 Id., Table C.
17 Sheets affidavit, ¶ 17(g).
18 Board's brief, p. 2.
19 Id., pp. 13-14.
20 State ex rel. Berger v. McMonagle (1983), 6 Ohio St.3d 28,451 N.E.2d 225.
21 Pike v. Hoppel (Nov. 13, 2000), Columbiana App. No. 00 CO 34 [probate and juvenile court]; State ex rel. Lewis v. Bd. of Cty. Cmmrs. ofPerry Cty. (Nov. 19, 1996), Perry App. No. 96 CA 39 [court of common pleas]; State ex tel. Weaver v. Lake Cty. Bd. of Cmmrs. (62 Ohio St.3d 204,590 N.E.2d 1090 [juvenile division of court of common pleas]; State exrel. Lake Cty. Bd. of Cmmrs. v. Hoose (58 Ohio St.3d 220, State ex rel.Arbaugh v. Richland Cty. Bd. of Cmmrs. (1984), 14 Ohio St.3d 5,470 N.E.2d 880 [common pleas court]; and State ex rel. Wilke v. HamiltonCty. Bd. of Cmmrs. (2000), 90 Ohio St.3d 55, 734 N.E.2d 811 [probate court]. Many more cases could be cited for this proposition.
22 Cuyahoga Cty. Bd. of Mental Retardation v. Cuyahoga Cty. Bd. ofCmmrs. (1975), 41 Ohio St.2d 103, 322 N.E.2d 885 [board of mental retardation]; State ex rel. Durkin v. City Council of Youngstown (1984),9 Ohio St.3d 102, 459 N.E.2d 213 [clerk of municipal court]; Stacey v.Halverstadt (Oct. 23, 1987), Columbiana App. No. 87-C-30 [clerk of court's legal department]; Stauffer v. Miller (1992), 79 Ohio App.3d 100,606 N.E.2d 1037 [board of elections]. See, also, State ex rel. Binder v.Bd. of Cty. Cmmrs. of Mahoning Cty. (1962), 174 Ohio St. 23,186 NE.2d 476 [soldiers' relief commission], Reed v. Portage Cty. Bd. of Cmmrs. (1985), 30 Ohio App.3d 41, 506 N.E.2d 249 [clerk of courts-auto title division; also holding that failure to appropriate in accordance with statute is an abuse of discretion]; State ex rel. Veterans Svc. Ofc. ofPickaway Cty. v. Bd. of Cty. Cmmrs. of Pickaway Cty. (1991),61 Ohio St.3d 461, 575 N.E.2d 206 [county veterans service commission]; and Lynch v. Gallia Cty. Bd. of Cmmrs. (1997), 79 Ohio St.3d 251,680 N.E.2d 1222 [county veterans service commission].
23 Wilke, supra, 90 Ohio St.3d at 60, 734 N.E.2d at 818 [courts]; Lynch, supra, 79 Ohio St.3d at 258, 680 N.E.2d at 1226.
24 See State ex rel. Cleveland Municipal Court v. Cleveland CityCouncil (1973), 34 Ohio St.2d 120 at 125, 296 N.E.2d 544 at 548.
25 Sheriff's brief, p. 12.
26 See State ex rel. Cleveland Municipal Court v. Cleveland CityCouncil (1973), 34 Ohio St.2d 120 at 125, 296 N.E.2d 544 at 548.
27 Trussell affidavit, ¶¶ 16 and 27.
28 Id., ¶¶ 61-72.
29 Id., ¶ 28.
30 See State ex rel. Concord Twp. Bd. of Trustees v. Cunningham (Sept. 16, 1988), Lake App. No. 12-198, appeal dismissed, (1989)41 Ohio St.3d 703, 534 N.E.2d 1202; and Lorain Cty. Deputies Assn. v.Varsi (Dec. 16, 1992), Lorain App. No. 91CV107692.
31 See Foster, supra, 16 Ohio St.2d at 91,242 N.E.2d at 885-886.
32 See Durkin, supra, 9 Ohio St.3d at 134, 459 N.E.2d at 216.