For a variety of reasons, I cannot join in the majority opinion.
The factual history behind this case indicates that, for many years, a set of taxicab companies with a common owner have dominated the Columbus market for taxicab services. This led to litigation in federal court which resulted in a consent decree intended to encourage competition. Following the litigation, independent taxicab drivers were better able to compete with Green Cabs, Yellow Cabs and other affiliated companies which have traditionally dominated the local market.
Construing the evidence most favorably to ITAC, as the trial court was compelled to do, the owner of the affiliated cab companies began complaining to influential friends about the taxicab service at the airport. The affiliated companies, robbed of their competitive advantage, had lost much of their airport business and/or had decreased their business at the airport because they had to wait in line for their opportunity to pick up customers. Rather than have their drivers sitting idle while waiting, the affiliated companies encouraged the drivers to perform services at locations other than the airport.
Again construing the evidence in favor of ITAC, the owner of the affiliated cab companies generated enough discussion in the business community that the *Page 370 Columbus Airport Authority began to investigate ways to change the way taxicab service was provided at the airport. A request for proposal was circulated which seemed tailored to assist the group of cab companies which had dominated the service to the airport before the federal court action. Specifically, the request included a requirement that the proposal to be submitted include a ratio of cabs to be provided by the entity which got the contract to the total number of cabs picking up fares. This ratio was anathema to ITAC and in effect prevented ITAC from submitting a proposal which complied with the request for proposal.
The effect of the proposal and the resulting contract was to place one cab company in a position to inspect all the cabs which service the airport and reject cabs which for some reason were deemed unsatisfactory. The contract allowed one cab company to be guaranteed one fourth of the cab business at the airport, without having its cabs wait in line for a chance to pick up a fare. The contract also required that a $2 per cab surcharge ($1 of which was formerly collected directly by the city of Columbus and/or the Columbus Airport Authority) be paid to the one cab company. The individual cab drivers could not be reimbursed more than one of the $2, so the other cabs which served the airport would be directly subsidizing their competitor.
To the surprise of no one, one of the cab companies owned by the individual who started the griping about the cab service at the airport got the contract.
ITAC sued to stop the contract but was refused a restraining order. Eventually, summary judgment was granted to Columbus Green Cabs, Inc. (which was awarded the contract), the city of Columbus, and the Columbus Airport Authority. ITAC then appealed to us and assigned the two errors set forth above.
The second assignment of error centers around a due process of law argument, apparently meant to be part of a theory of liability pursuant to Section 1983, Title 42, U.S.Code. Although having an important decision made about one's livelihood by a city council may not seem like much due process to ITAC, determination by city council is frequently all the process that is due where a decision is being made about whether a contract should be entered into by a city.
The evidence before the trial court, construed most favorably to ITAC, indicated that the process used to decide who to recommend to city council to receive the contract was heavily weighted in favor of the ultimate recipient. However, the fact that the process which generated the recommendation was less than fair does not automatically mean that the resulting ordinance was arbitrary and capricious. The record does not support a finding that city council was aware of the machinations which ITAC alleged were occurring behind the scenes. Thus, the record does not contain the factual requisites for a claim pursuant to Section 1983, Title 42, U.S. Code, as alleged in ITAC's complaint. *Page 371
The harder issue, and the one upon which I reach a different result than the other two members of this judicial panel, is the issue of whether summary judgment was appropriate as to the remaining theories before the trial court. I do not believe that the appellees demonstrated that no genuine issue of material fact was present and that they were entitled to judgment as a matter of law.
One of the primary theories presented by ITAC both before the trial court and in the briefs in this appeal is that the surcharge formerly collected by the city, and now collected at a higher rate by Green Cabs pursuant to the contract, constituted public funds. Public funds can be expended for the purchase of professional services only after compliance with Columbus City Code Section ("C.C.") 329.12.
The city and the Columbus Airport Authority made no attempt to comply with C.C. 329.12. Instead, the city and the Columbus Airport Authority argued that the surcharge, which is set by city ordinance and which apparently generates $160,000 more money in collections than the $90,000 sum that the city is paid by Green Cabs, does not involve an expenditure of public funds. The city and the Columbus Airport Authority submit (and the trial court found) that the contract is really a contract to generate revenues for the city, not an expenditure of public funds. Under this theory, if a company pays the city $1 and in return is permitted to collect $1 million from individuals or business entities in Columbus, backed by the power of city government, $1 million would not be an expenditure of public funds but would be a revenue contract. The fact that the city in actuality loses $999,999 in the process really is not important in making the determination, at least under this argument.
I believe that the sums collected via the surcharge, having been set by a city ordinance, having been formerly collected by the city and being collected now at a public airport for the right to provide taxicab service to the general public, are in fact public funds. Thus, I believe that the record below shows the contract to have been awarded illegally and that summary judgment for the appellees was inappropriate.
The discussion in the opinion from which I dissent talks at some length about the rights of a home-rule city when maintaining a public utility. That discussion does not address nor does the Ohio Constitution sanction a city ignoring its own duly enacted ordinances on the subject of the expenditure of public funds.
Because I believe the trial court erred in granting judgment in favor of the appellees, I would sustain the first assignment of error, reverse the judgment of the trial court, and remand the cause for further proceedings. Since the majority opinion does not do so, I respectfully dissent as to that part of the majority opinion. *Page 372