dissenting.
{¶ 54} I respectfully dissent from the majority opinion. While I empathize with the position in which relators were placed and do not fully condone the actions of the prosecutor’s office, I do not believe relators are entitled to mandamus relief under existing law.
{¶ 55} In order for relators to establish a clear legal right to have legal counsel appointed at the expense of the county, they must show that they are entitled to this relief under the applicable statutes. R.C. 309.09(A) requires the prosecuting attorney to defend all actions to which a county officer is a party and explicitly states that other counsel may not be employed at county expense “except as provided in section 305.14 of the Revised Code.” Thus, the inquiry is twofold: (1) *435were relators county officers, and (2) did they follow the statutorily required procedure to have counsel appointed at county expense?
{¶ 56} Although the parties did not specifically raise the county-officer issue in their initial briefs to this court, there is no doubt that this court cannot issue mandamus relief when a legal right does not exist. Relators have the burden of proving their entitlement to the requested extraordinary relief in mandamus, and this burden cannot be waived.
{¶ 57} Relators were Cuyahoga County Board of Elections (“BOE”) employees who were acting as election officials during the recount of the 2004 presidential race. The record reflects that they were placed in a position of trust, were performing duties in furtherance of the public interest, and exhibited other characteristics of county officers. However, relators cite no controlling legal authority to support their position that they were in fact county officers.
{¶ 58} Relators rely upon certain definitions of “county officers” in support of their argument. State ex rel. Attorney Gen. v. Brennan (1892), 49 Ohio St. 33, 38-39, 29 N.E. 593, was decided at a time when all county officers were elected officials. The discussion in the concurring opinion in Leber v. Smith (1994), 70 Ohio St.3d 548, 554-556, 639 N.E.2d 1159 (Douglas, J., concurring), concerning the plain meaning of the words as defined in Black’s Law Dictionary was in relation to a county sheriff, who is considered a county officer under statutory provisions providing for the salaries and compensation of county officers, R.C. 325.02 and R.C. 325.06. Also, the Ohio Attorney General opinions have remained limited to deputy sheriffs and volunteer deputy sheriffs. See 1980 Ohio Atty.Gen. Ops. No. 76 and 1973 Ohio Atty.Gen.Ops. No. 73-055.
{¶ 59} It must be recognized that the county boards of elections are of statutory creation. The authority of a county board of elections and the performance of duties by its members are governed by applicable statutory requirements. See State ex rel. Husted v. Brunner, 123 Ohio St.3d 288, 2009-Ohio-5327, 915 N.E.2d 1215, ¶ 11. The secretary of state has authority over the county boards of elections. R.C. 3501.05. The secretary of state has authority to issue directives and advisories to the various boards of elections and to compel election officials to observe the requirements of the law. R.C. 3501.05(B) and (M). Members of each county board of elections are appointed by the secretary of state, and the members and employees of the board of elections are subject to dismissal by the secretary of state. R.C. 3501.06, 3501.16. R.C. 3501.01(U)(6) defines employees of the board of elections as election officers. Significantly, R.C. 3501.14 explicitly states that “employees of the board [of elections] are not public officers.”
{¶ 60} In State ex rel. Columbus Blank Book Mfg. Co. v. Ayres (1943), 142 Ohio St. 216, 27 O.O. 176, 51 N.E.2d 636, the Ohio Supreme Court held that “all *436matters pertaining to the conduct of elections are state functions” and that “[mjembers of the boards of elections act under the direct control of and are answerable only to the Secretary of State in his capacity as the chief election officer of the state. They perform no county functions and are not county officers.” (Emphasis added.) Id. at paragraphs one and two of the syllabus. The court found nothing to indicate any legislative intent to make the members of the boards of elections county officers. Id. at 220, 27 O.O. 176, 51 N.E.2d 636; see also State ex rel. Moss v. Franklin Cty. Bd. of Elections (1980), 69 Ohio App.2d 115, 117, 432 N.E.2d 210 (recognizing that a board of elections is not a political subdivision and its members are not county officers).
{¶ 61} Although R.C. 309.09 and 305.14 were not enacted at the time Ayres was decided, the Ohio Supreme Court’s decision is clearly on point. Employees, like members, of the board of elections are under the control of the secretary of state and are performing state functions in the conduct of elections. Because relators’ authority was under the directive of a state official and because they were performing state functions, I do not agree with the majority’s conclusion that they are county officers under the plain meaning of the term.
{¶ 62} There is no question that a county board of elections has some connection with the county in which it is situated. The expenses of the board of elections are paid from appropriations by the board of commissioners of the county, and compensation of board of elections employees is paid in the same manner as other county expenses are paid. R.C. 3501.17. Board of elections employees may also be afforded county health-insurance coverage. R.C. 305.171.2 Thus, at best, members and employees of a county board of elections have been considered to be “connected with the county” in certain respects. See State v. Rousseau, 159 Ohio App.3d 34, 2004-Ohio-5949, 822 N.E.2d 847. However, there remains no clear legal authority for considering an employee of a board of elections as a “county officer.”
{¶ 63} I acknowledge the critical role of the board of elections in effecting and preserving the democratic process. The record supports relators’ claim that they were acting in their official capacity for the BOE and were performing their duties or responsibilities in a good faith, well-intended manner and in furtherance of the election process. Relators make a compelling argument for their being included among the “county officers” for purposes of R.C. 309.09(A) and 305.14(A). As discussed above, however, there is no controlling legal authority in *437support of their argument. The General Assembly may, therefore, wish to consider clarifying the definition and scope of the term “county officers” for purposes of R.C. 309.09(A) and 305.14(A) in order to prevent future controversies.
{¶ 64} Even if it is presumed, for the sake of argument, that relators were county officers, they still fail to demonstrate that they have a clear legal right to the relief requested and that respondents have a clear duty to provide that relief. R.C. 305.14(A), to which R.C. 309.09(A) refers, sets forth the procedure that must be followed in order for legal counsel, other than the prosecuting attorney, to be hired at the county’s expense. This statute requires authorization from the court of common pleas upon a joint application of the prosecuting attorney and the board of county commissioners. Further, R.C. 305.17 requires the board of county commissioners to fix the compensation of appointed counsel.
{¶ 65} In this case, a joint application was not filed by the prosecutor and the Cuyahoga County Board of County Commissioners (“the commissioners”) for the appointment of other counsel as required by R.C. 305.14(A). Rather, relators hired their own independent counsel. Simply because respondents refused or ignored the requests of relators, which were made through the BOE, does not obviate the statutory requirement for a trial court’s authorization for independent counsel.
{¶ 66} I recognize that relators may have been forced to obtain independent counsel because of respondents’ inaction and that certain representations were made by both the prosecutor and the BOE concerning an intention to pay relators’ legal fees and expenses if their cases were resolved without convictions.3 I also recognize that relators made repeated requests to the BOE concerning the appointment of counsel as the criminal proceedings ensued. I do not fully condone the inaction of the prosecutor’s office in this matter. Nevertheless, there was nothing that prevented relators from obtaining the statutorily required authorization once the prosecutor expressed a conflict of interest. I am constrained to follow the law in this matter and cannot ignore relators’ own failure to comply with the statutory requirements.
{¶ 67} If relators wished to employ independent counsel at county expense, they were statutorily required to obtain authorization for the appointment of *438independent counsel during the pendency of the criminal proceedings. Because R.C. 309.09 prevents anyone but the prosecutor from representing a county officer except as provided in R.C. 305.14, other counsel ordinarily should not be appointed unless a proper application has been filed pursuant to R.C. 305.14.4 State ex rel. Corrigan v. Seminatore (1981), 66 Ohio St.2d 459, 462-463, 20 O.O.3d 388, 423 N.E.2d 105; State ex rel. Stamps v. Automatic Data Processing Bd. of Montgomery Cty. (1989), 42 Ohio St.3d 164, 167, 538 N.E.2d 105. However, when the prosecuting attorney has a conflict of interest, this joint application is not a prerequisite to a trial court’s authorization of outside counsel. State ex rel. Trumbull Cty. Bd. of Elections v. Trumbull Cty. Bd. of Commrs., Trumbull App. No. 2009 TR 85, 2010-Ohio-2281, 2010 WL 2026075, ¶ 20-21; Stamps, 42 Ohio St.3d at 167, 538 N.E.2d 105.
{¶ 68} In such circumstances, a court of common pleas may directly appoint legal counsel to represent the county officer without the acquiescence of the prosecuting attorney upon determining that a conflict of interest exists and that the county officer is entitled to representation at county expense. See State ex rel. Jefferson Cty. Children Servs. Bd. v. Hallock (1986), 28 Ohio St.3d 179, 182-183, 28 OBR 269, 502 N.E.2d 1036; Seminatore, 66 Ohio St.2d at 465, 20 O.O.3d 388, 423 N.E.2d 105. Likewise, an action in mandamus is an appropriate remedy to compel a joint application to the common pleas court. Trumbull Cty.-, State ex rel. Hillyer v. Tuscarawas Cty. Bd. of Commrs. (1994), 70 Ohio St.3d 94, 637 N.E.2d 311; Seminatore, 66 Ohio St.2d at 463-464, 20 O.O.3d 388, 423 N.E.2d 105.
{¶ 69} In this case, it is uncontroverted that neither the prosecutor nor the commissioners filed an application under R.C. 305.14 to appoint separate counsel for relators. However, despite the prosecutor’s obvious conflict of interest, relators retained their own independent counsel without having counsel appointed by the court of common pleas. Relators did not file an action seeking the appointment of independent counsel at the time they were indicted or at any time during the pendency of the criminal proceedings against them. Counsel’s requests to the BOE reflect that relators were aware of the conflict of interest and the statutory requirement for the authorization of independent counsel, yet they did not directly seek appointment by the court of common pleas. They filed this action in mandamus seeking the retroactive appointment of counsel and reimbursement for their legal expenses on September 18, 2009, four years after *439relators were subpoenaed to testify before the grand jury and well after the criminal proceedings concluded.
{¶ 70} R.C. 309.09 and 305.14 do not authorize a county officer to employ independent legal counsel other than in accordance with the specific terms and procedures set forth therein. 1990 Ohio Atty.Gen.Ops. No. 90-096. The statutes, as written, contemplate the authorization of outside counsel to assist in the defense of a pending action. As the Ohio Supreme Court has recognized, “R.C. 305.14 confers power upon the common pleas court to authorize the appointment of legal counsel other than the prosecuting attorney to represent a county board or officer in a pending action.” Seminatore, 66 Ohio St.2d at 465, 20 O.O.3d 388, 423 N.E.2d 105. When the required authorization is not obtained, these statutes do not permit the board of county commissioners to reimburse a county officer for legal expenses in an action that is no longer pending. See 1988 Ohio Atty.Gen.Ops. No. 88-055; see also R.C. 305.17.5 In this case, there was nothing that impeded relators’ ability to obtain the required statutory authorization. I believe that the mandamus action is untimely.
{¶ 71} Accordingly, relators have failed to establish that they are county officers under existing law. Even if relators were considered county officers who were legally entitled to representation, they were required by statute to obtain authorization for the appointment of legal counsel at county expense during the pendency of their criminal proceedings. Furthermore, because of the prosecutor’s conflict of interest, court authorization was not dependent upon a joint application. Relators failed to comply with the required statutory procedure. For the foregoing reasons, relators have not established their entitlement to the requested extraordinary relief in mandamus.
{¶ 72} For the foregoing reasons, I believe respondents’ motion for summary judgment should be granted and the requested mandamus relief denied.
. Importantly, R.C. 305.171(J) specifically defines "county officer or employee" for purposes of that section to include "a member or employee of the county board of elections.” This would suggest that unless otherwise defined, they are not considered county officers or employees. Also, R.C. 309.09(A) specifically lists the "board of elections” apart from “other county officers and boards,” suggesting a distinction.
. Relators have submitted affidavits attesting that the BOE members unanimously committed and agreed that the BOE would pay relators’ legal fees and expenses if they were not convicted of any criminal conduct. It is also averred that Assistant Prosecuting Attorney Reno Oradini informed the BOE members that the county would pay the indicted employees’ legal fees only if they were found not guilty. I recognize that relators may have relied on these representations in obtaining independent legal counsel in the criminal proceedings without further pursuing the appointment of said counsel. However, the enforceability of any promise to pay relators’ legal fees is not an issue in this matter.
. I agree with the view expressed in fh. 1 of the majority opinion and the attorney general's determination concerning the appointment of legal counsel for county officials engaging in a good-faith, well-intended attempt to perform official duties or responsibilities that result in criminal charges. However, in my opinion, such a determination is not necessary to the disposition of the within matter.
. It is recognized that reimbursement of legal fees has been permitted in circumstances where approval for the appointment of counsel is obtained during the pendency of a matter. In State ex rel. Wilke v. Hamilton Cty. Bd. of Commrs. (2000), 90 Ohio St.3d 55, 734 N.E.2d 811, relied upon by relators, an application for the appointment of legal counsel was filed with the common pleas court during the pendency of the budget dispute and reimbursement for legal expenses was found warranted under R.C. 305.14.