State ex rel. Strothers v. Wertheim

Cook, J.,

dissenting. I respectfully dissent. The definition of “public office” found at R.C. 149.011(A) limits itself to entities “established by the laws of this state for the exercise of any function of government.” (Emphasis added.) Today’s majority reads that part of the requirement out of the statute by classifying as a “public office” any entity that (1) performs a public service and (2) *163is supported by public funds. That conclusion follows a short progression of cases in which this court has not specifically analyzed whether the entity involved was “established under the laws of this state for the exercise of any function of government,” instead, analyzing only whether the entity actually exercises a function of government. I believe that we ought to give effect to the entire definitional phrase and apply it to this case to conclude that the Cuyahoga County Ombudsman Office does not meet the statutory definition of a “public office.”

In State ex rel. Fox v. Cuyahoga Cty. Hosp. Sys. (1988), 39 Ohio St.3d 108, 529 N.E.2d 443, the court determined that a hospital owned and operated by Cuyahoga County was a “public institution” and, therefore, a “public office” within the meaning of R.C. 149.011(A). The Fox court supported its classification of the hospital as a “public institution” by recognizing that the hospital rendered a public service to county residents and was supported by public taxation. Because county hospitals are established pursuant to statute (R.C. 339.03; 339.06), the remaining issue in that case was whether the hospital was established to exercise “any function of government” as required under R.C. 149.011(A). The court’s opinion did not specifically address the statutory authority under which the county hospital was created, focusing its analysis instead on whether county hospitals, in fact, exercise a function of government. Accordingly, R.C. 149.011(A)’s definitional requirement that a “public office” be “established by the laws of this state for the exercise of any function of government” was not fully incorporated into the body or syllabus of the Fox opinion.

In State ex rel. Fostoria Daily Review Co. v. Fostoria Hosp. Assn. (1988), 40 Ohio St.3d 10, 531 N.E.2d 313, this court apparently applied the syllabus in Fox, supra, as a complete test to determine whether an entity falls under R.C. 149.011(A)’s definition of a “public office,” stating that “[s]ince Fostoria City Hospital meets all the criteria stated in paragraph one of the syllabus in State ex rel. Fox v. Cuyahoga Cty. Hosp. [Sys.], supra, it is a public institution, and its public records must be disclosed * * *.” Id. at 13, 531 N.E.2d at 316. The court reached this conclusion without explicitly analyzing whether the hospital was established by statute for the exercise of a function of government, noting only that “the main hospital building was originally leased pursuant to R.C. 749.35, which authorizes the lease of a city-owned hospital building to a nonprofit corporation for use as a general hospital. See, also, R.C. 140.05. According to R.C. 749.35, if the nonprofit corporation fails to operate the hospital as a public general hospital, the lease may be terminated and the control and management of the hospital, including equipment, revert to the city.” Id. at 12, 531 N.E.2d at 315.

While it is possible that the Fostoria court intended its discussion of the statutory relationship between the city of Fostoria as owner of the hospital *164building and the Fostoria Hospital Association as its tenant to fulfill R.C. 149.011(A)’s definitional requirement that a “public office” be established by the laws of this state for the exercise of a function of government, that intent is not entirely clear from its opinion.

In State ex rel. Toledo Blade Co. v. Univ. of Toledo Found. (1992), 65 Ohio St.3d 258, 602 N.E.2d 1159, this court again did not discuss that portion of the definition of “public office” requiring that an entity be “established by the laws of this state for the exercise of a public function.” Instead, the court considered university support and the public function served by the private, nonprofit corporation therein under consideration, emphasizing that the corporation could not be separated from the public institution that it served (the University of Toledo). Because the court found the corporation was, in effect, an “entity of the university,” it reasoned that it too was subject to R.C. 149.43’s reporting requirements.

Athough the laws of this state authorize a county or municipal authority to cooperate and give financial assistance to a nonprofit ombudsman corporation (R.C. 307.691), that corporation itself is not established by statute to exercise a function of government. Instead, as a private, nonprofit corporation, the Cuyahoga County Ombudsman Office is formed by its incorporators under the laws of this state and those incorporators determine the corporation’s purpose. R.C. 1702.03. Accordingly, I believe that the Cuyahoga County Ombudsman Office is not a “public office” within the meaning of R.C. 149.011(A). Moreover, even assuming that Fostoria and Toledo Blade impliedly establish a relaxed interpretation of R.C. 149.011(A)’s requirement that a public office be “established by the laws of this state for the exercise of any function of government,” Chief Justice Moyer’s dissent nonetheless demonstrates that the Cuyahoga County Ombudsman Office does not meet even that relaxed interpretation.

I am mindful that this court has repeatedly emphasized that R.C. 149.43 must be “construed liberally in favor of broad access, and that any doubt is resolved in favor of disclosure of public records.” State ex rel. Cincinnati Enquirer v. Hamilton Cty. (1996), 75 Ohio St.3d 374, 376, 662 N.E.2d 334, 336, citing State ex rel. Thomas v. Ohio State Univ. (1994), 71 Ohio St.3d 245, 246, 643 N.E.2d 126, 128. Liberal construction, however, does not empower this court to ignore the phrasing of statutory definitions. I would, therefore, affirm the judgment of the appellate court, based on the fact that the Cuyahoga County Ombudsman Office is not established by the laws of this state for the exercise of a function of government.

Lundberg Stratton, J., concurs in the foregoing dissenting opinion.