Episcopal Retirement Homes, Inc. v. Ohio Department of Industrial Relations

Douglas, J.,

dissenting. I respectfully dissent from the judgment of the majority. I do so because I do not agree with the majority in its interpretation of the law and because I fear that the ramifications of the majority decision will far exceed the purpose intended by the majority.

R.C. 4115.03 et seq. is a comprehensive formulation by the General Assembly designed to protect private sector collective bargaining agreements in the construction trades. Known as the Ohio prevailing wage law, the law was enacted to foster and encourage collective bargaining and thereby bring about orderly and peaceful resolution of disputes involving wages to be paid construction tradesmen. “ * * * Above all else, the primary purpose of the prevailing wage law is to support the integrity of the collective bargaining process by preventing the undercutting of employee wages in the private construction sector.” State, ex rel. Evans, v. Moore (1982), 69 Ohio St.2d 88, 91, 23 0.0.3d 145, 147, 431 N.E.2d 311, 313. Today’s decision seriously weakens this concept and serves to defeat both the admirable expressed intent of the General Assembly and the law on the subject as it has been written and developed.

This case is really not very complicated. Appellee is a not-for-profit religious corporation. Appellee owns and operates retirement and nursing facilities for aged persons. Two of these facilities are St. Luke Center, located in Cincinnati, and Whetstone Convalescent Center, located in Columbus. Appellee desired to renovate these facilities. In order to secure the necessary capital to complete the projects, appellee sought to have issued $21 million of hospital revenue bonds pursuant to the authority found in R.C. Chapter 140. In order to obtain the more favorable interest rate that such revenue bonds would provide, the bonds had to be issued through and in cooperation with a “public hospital agency,” as defined in R.C. 140.01(B). This definition includes, as an entity, the county of Hamilton, Ohio.

*373To accomplish its purposes (and to comply with the law), appellee had to lease the facilities in question to a public hospital agency (Hamilton County). This provided the right, coupled with an interest, for Hamilton County to participate in the transaction. Accordingly, appellee leased the facilities to the county which, immediately thereafter, subleased the properties back to appellee. This procedure qualified the transaction for R.C. Chapter 140 hospital revenue bond treatment.

Recognizing that this “use” of a public entity implicitly (if not explicitly) smelled like, walked like and quacked like an improvement for the public, the Director of the Ohio Department of Industrial Relations notified appellee that the renovation and construction projects were subject to the prevailing wage law. Appellee did not concur and commenced this action seeking a ruling that the projects were not construction subject to the prevailing wage law. The trial court and the court of appeals agreed with appellee. The majority, herein, affirms the judgment of the court of appeals, and since I believe that the majority is in error, I dissent.

The argument is made by the appellee and the majority that the transaction between appellee and Hamilton County is not, as required by R.C. 4115.03(C), construction “pursuant to a contract with a public authority” nor is it construction “for a public authority.” To support its position, the majority argues that neither of the lease documents “ * * * sets forth the plans and specifications necessary for construction * * *,” and that for the construction to be for a public authority, the public authority must receive benefit from the construction “ * * * either through maintaining a possessory or property interest in the completed project * * *.” Thus, argues the majority, neither of these conditions found in R.C. 4115.03(C) has been met.

The majority is in error. R.C. 4115.03(C) does not contain either of the requirements set forth by the majority. To arrive at the result reached by the majority, one needs to read into and considerably expand the language of the statute. Rather than doing so for the purpose of seeking a way to avoid the prevailing wage law, it is our obligation to construe the statute liberally in favor of its intended purpose, since the provisions of R.C. Chapter 4115 are remedial in nature and remedial laws are required to be liberally construed.

Further, in providing this favorable method of financing, the General Assembly has (as it often does not do) set forth its purpose in enacting the legislation. R.C. 140.02 provides, in pertinent part, that “[t]he authorizations granted in this chapter * * * are granted for the public purpose of better providing for the health and welfare of the people of the state by enhancing the availability, efficiency, and economy of hospital facilities and the services rendered thereby * * *.” (Emphasis added.) I would think that a fair *374reading of this clear purpose clause would lead even the casual reader to the conclusion that the General Assembly devised this financing scheme to further a public purpose and that the public does receive the benefit of the construction.

To accept the position of the majority invites mischief. Henceforth, it would seem, any public authority desiring to avoid its responsibilities under the prevailing wage law need only contract with a straw man to see to it that a public facility is erected. It would then be up to the straw man to enter into a contract for the actual construction of the facility. Because, according to the majority, the public authority did not enter into a contract for the actual construction, the project would be exempt from the prevailing wage law. The possibilities are endless and opening wide this door would tend to eviscerate the legislative intent — a proposal we recently rejected in Harris v. Van Hoose (1990), 49 Ohio St.3d 24, 550 N.E.2d 461.

Finally, it is obvious that without the help and intervention of Hamilton County, there would have been no R.C. Chapter 140 bond financing for appellee’s benefit. The active participation of some public entity was necessary. An analogy can be drawn in this case to State, ex rel. Fostoria Daily Review Co., v. Fostoria Hosp. Assn. (1988), 40 Ohio St.3d 10, 531 N.E.2d 313, wherein we thwarted an attempt by a public entity to avoid public accountability through a contract with a private, not-for-profit corporation. In Fostoria, we ordered disclosure of hospital records as public records even though the operation of the hospital had been turned over by the public entity to a private not-for-profit corporation.

Our decision here should be no different. The renovation and construction projects of appellee are a result of an arrangement (a contract) with a public entity and authority. The fact that appellee is a private not-for-profit corporation does not alter the public nature of the construction activity and/or the entities involved.

This court should hold that any and all R.C. Chapter 140 bond-financed construction is subject to the requirements of Ohio’s prevailing wage law. Since the majority does not do so, I respectfully dissent.

Sweeney and H. Brown, JJ., concur in the foregoing dissenting opinion.