dissenting. I disagree with the majority’s conclusion that Mallory should be able to collect PERS credit for the period she was employed with the Franklin County Public Defender’s Office (“FCPDO”).
A. THE BOARD DID NOT ERR IN FAILING TO CONSIDER R.C. CHAPTER 120
The board’s refusal to award Mallory PERS credit was in the form of a letter which stated:
“[T]he work in question was done for a non-profit organization under contract to provide such services. As such this was not public service for a public employer for purposes of Chapter 145, Ohio Revised Code. Accordingly, PERS membership was not required.
“The crux of your [Mallory’s] position that you were a ‘public employee’ rests not on the facts, but rather on the legal argument that the commission operations as conducted were unlawful under Chapter 120, Ohio Revised Code. Consequently, individuals acting as public defenders only could be employees of the county. * * * PERS cannot make a legal determination that something is unlawful under statutes which it neither administers nor enforces.”
In finding that the board erred, the majority states:
“What the board was asked to do was to consider any and all statutes that might be pertinent in regard to appellant’s status as a public employee. In this regard there is nothing in R.C. 145.01(A) that limits the board to interpreting only those statutes that the board administers. Therefore, the board erred in concluding that it did not have the statutory authority to construe R.C. Chapter 120 to determine whether appellant was a public employee for purposes of PERS during her employment at the FCPDO.” (Emphasis added.)
I disagree. Agencies are created by statute. Imperial Clevite, Inc. v. Steinbacher (Mar. 29, 1988), Franklin App. No. 87AP-521, unreported, 1988 WL 37078. Thus, an agency’s authority is limited to the jurisdiction and powers conferred upon it by the enabling statute. State ex rel. Clarke v. Cook (1921), 103 Ohio St. *247465, 467, 134 N.E. 655; Green v. W. Res. Psychiatric Habilitation Ctr. (1981), 3 Ohio App.3d 218, 3 OBR 248, 444 N.E.2d 442. Generally, an administrative agency or board has no greater power than that expressly conferred upon it by the enabling statute. See Washington v. Pub. Util. Comm. (1918), 99 Ohio St. 70, 72, 124 N.E. 46, 47. An agency may also have implied powers, which are limited to those that “may be reasonably necessary to make the express power effective.” State ex rel. A. Bentley & Sons Co. v. Pierce (1917), 96 Ohio St. 44, 47, 117 N.E. 6, 7. A power will not be implied where the agency has the means to decide the issue within the confines of its express authority. Green.
The implications of the majority’s conclusions are far-reaching. The vague, permissive language used by the majority (“any and all statutes that might be pertinent”) has implications beyond the facts of this case. It opens the door to allow administrative agencies to interpret statutes or issues that they have no jurisdiction to interpret, that they have no expertise to interpret, and that only marginally touch upon matters traditionally within the province of that agency’s jurisdiction. Further, such permissiveness could allow an agency to set a legal precedent on an issue traditionally and more appropriately reserved for a court of law. The majority’s decision allows an administrative agency to declare an entire non-profit organization established under the Ohio Revised Code illegal.
In the case at bar, the board followed its grant of authority. Applying R.C. 145.01 et seq. and any applicable Ohio Administrative Code sections, the board determined that the evidence before it indicated that the FCPDO operated as a private entity for purposes of withholding PERS, and that therefore Mallory was not entitled to any PERS credit for the period she was employed with the FCPDO.
I do not believe that it is within the province of the board to determine whether Kura’s actions in hiring the staff and attorneys from the Franklin County Legal Aid and Defender’s Society (“Legal Aid”) were legal under R.C. 120.01 et seq. While such a determination could ultimately affect the PERS status of the Legal Aid employees, the interpretation of statutes outside R.C. 145.01 et seq. is not expressly granted to the board in R.C. Chapter 145. Further, interpretation of R.C. 120.01 et seq. by the board is not reasonably necessary for it to make a determination of whether Mallory was eligible for PERS credit. The evidence before the board was sufficient to make that determination. Such a determination would effectively and improperly elevate an administrative agency into a court of law.
Accordingly, I would find that the board did not err in failing to interpret the legality of Kura’s actions, pursuant to R.C. 120.01 et seq., in forming the FCPDO because there is no express or implied power in R.C. 145.01 et seq. that would authorize the board to make such a determination.
*248B. THE FCPDO WAS A PRIVATE ENTITY
1. R.C. 120.04 Provides the Authority to Contract with a Private Entity
The majority determines that the FCPDO’s employees, including Mallory, during the period in question, were “public employees” as defined in R.C. 145.01 et seq. In support of this conclusion, the majority cites some of the duties that the FCPDO must perform. Based on these duties, the majority essentially determines that the FCPDO is a “ ‘public office’ [because these acts] denote[ ] exercise of certain independent public duties and embod[y] part of the sovereignty of the governmental unit involved,” citing Buian v. Kadlec (1978), 56 Ohio St.2d 116, 10 O.O.3d 307, 383 N.E.2d 119, and State ex rel. Mikus v. Hirbe (1965), 5 Ohio App.2d 307, 34 O.O.2d 490, 215 N.E.2d 430.
I disagree with this analysis. Neither Buian nor Mikus construes the term “public employee” for purposes of R.C. 145.01 et seq. While I do not disagree with much of the majority’s pronouncements on who is' or is not a public employee, the fact of the matter is that many of these conclusions simply do not apply to an agency that is able to contract with a private entity. There would be no purpose or value to private contracts if any government function contracted out to private entities would automatically make these workers public employees. To reach its conclusion, the majority seems to find that there can be no valid contracting with a private entity.
Second and more importantly, the majority’s analysis completely ignores that the General Assembly has provided for such private contracting under R.C. 120.04(C)(3). In reviewing the background of this provision, I note that, in 1976, the General Assembly enacted R.C. Chapter 120, the Public Defenders Act, which established the Ohio Public Defender Commission and authorized counties to create county and joint county public defender commissions. 136 Ohio Laws, Part I, 1868. Effective January 8, 1976, pursuant to R.C. 120.13, the Franklin County Commissioners established the Franklin County Public Defender Commission (“commission”) to provide legal representation to indigent persons. The commission appointed James Kura as the Franklin County Public Defender. This legislation, R.C. 120.15(C), which enabled the formation of the public defender’s office, read:
“The county public defender [Kura] may exercise the rights authorized in division (C) of section 120.04 of the Revised Code.” 136 Ohio Laws, Part I, 1877.
R.C. 120.04(C) read:
“The state public defender may:
it * $ ‡
*249“(3) Make all the necessary arrangements to coordinate the services of the office with any * * * private program established to provide legal representation to indigent persons * * *.” 136 Ohio Laws, Part 1,1872.
R.C. 120.04(C)(3), read together with R.C. 120.15, unambiguously gives the county public defender the option of contracting with a private entity to provide the legal representation that the county public defender is obligated to provide by statute. The majority fails to acknowledge this point.
Legal Aid was a non-profit, non-county agency that contracted with the city of Columbus and Franklin County to provide legal defense services. In 1976, Legal Aid ceased its work in the criminal defense area. Under the authority of R.C. Chapter 120, Kura then hired the support personnel and attorneys from Legal Aid to staff the FCPDO.
Kura and the commission intended for the FCPDO to be a non-county entity. The FCPDO, in fact, operated as if it were a non-county, unincorporated association whose employees were not public employees for purposes of the PERS. The FCPDO staff paid Social Security taxes on their wages, but made no contributions to PERS.
2. The Effect ofR.C. 120.14(F)
In 1984, the Ohio Public Defender Act was amended to add R.C. 120.14(F). R.C. 120.14(F) specifically provided that the commission may contract with the State Public Defender or any non-profit organization to provide legal representation to indigent persons. On December 31, 1984, the Franklin County Public Defender filed articles of incorporation with the Secretary of State to become a non-profit organization.
However, the majority cites Kura’s actions in advocating the 1984 amendment to R.C. Chapter 120 as his efforts to “legalize” the privatization of the FCPDO. The mere fact that Kura sought to explicitly formalize the status of the arrangement merely demonstrates his diligence in seeking to clarify the FCPDO’s ability to contract out to private entities for legal services. I would find that the 1984 enactment of section (F) to R.C. 120.14 merely reaffirmed that the FCPDO can contract with private organizations under the authority previously established by R.C. 120.14(C)(3).
3. A Legal Contract Existed
The majority finds that “[t]he record before us is devoid of any evidence of a contract, written or oral, between Kura and the FCPDO.” The majority’s analysis fails to take into account that contracts may be implied in fact.
If a contract is implied in fact, there is no express agreement. Therefore, the meeting of the minds is proven by the “surrounding circumstances which made it *250inferable that the contract exists as a matter of tacit understanding.” Legros v. Tarr (1989), 44 Ohio St.3d 1, 6-7, 540 N.E.2d 257, 263. Additionally, a contract is created by the obligation of payment for services:
“In its legal sense, the word ‘contract’ includes every description of agreement or obligation, whether verbal or written, whereby one party becomes bound to another to pay a sum of money or to perform or omit to do a certain act.” Terex Corp. v. Grim Welding Co. (1989), 58 Ohio App.3d 80, 82, 568 N.E.2d 739, 741.
The parties stipulated that, “[i]n 1976, the Franklin County Public Defender Commission appointed James Kura as the Franklin County Public Defender. Following his appointment, James Kura hired a staff of attorneys and other support personnel from [Legal Aid4] to form the FCPDO.” Kura set up the FCPDO as a non-county, non-public entity as evidenced by the fact that the commission, through Kura, on behalf of the FCPDO, submitted an SS-4 application for an employer identification number that identified it as an unincorporated association; the FCPDO sought tax-exempt status under Section 501(c)(3), Title 26, U.S.Code as a charitable organization; Social Security tax (rather than PERS) was withheld from the staffs pay; sick and health benefits differed from other county employees, and the Franklin County Commissioners did not carry the FCPDO employees on the county payroll.
Further, the minutes of the June 29, 1976 meeting of the Franklin County Public Defender Commission reflect a motion passed approving of the FCPDO as a non-profit corporation. In addition, a National Labor Relations Board Region 9 decision, No. 9-RC-13239, dated March 25, 1980, recognized that the FCPDO was a “non-profit unincorporated association.” Finally, Articles of Incorporation were filed for the Franklin County Public Defender on December 31, 1984, pursuant to the then newly enacted R.C. 120.14(F).
These circumstances taken together reveal Kura’s intention to hire the staff and attorneys from Legal Aid to create a new entity to fulfill the commission’s duty to provide legal representation to indigents originally as an unincorporated association and later as a non-profit organization separate and apart from the county. Legros.
In fact, there is no evidence that the FCPDO ever acted as a public employer. While there is no written contract, there is substantial written documentation and other testimony in the record that the Franklin County Commissioners, as well as the Franklin County Public Defender Commission, intended to establish a private entity and transfer all the rights, duties, and responsibilities of the commission to that entity. All of the evidence cited above in terms of tax filings, wage and tax statements, minutes of the Franklin County Public Defender Commission meet*251ings, payroll of the Franklin County Commissioners, and other materials amply support that a contract was intended between Kura and Legal Aid to form the FCPDO. This evidence also goes to support the board’s denial of Mallory’s PERS credit.
Therefore, I would find that there is some evidence that Mallory’s employer, the FCPDO, was a private entity for purposes of PERS during the time period in question. See State ex rel. Schwaben v. School Emp. Retirement Sys. (1996), 76 Ohio St.3d 280, 667 N.E.2d 398. Accordingly, I would find that the board did not abuse its discretion in holding that Mallory was not a public employee during the time in question for purposes of granting PERS credit.
4. R.C. 292142
The majority also claims that any contract would be invalid under R.C. 2921.42 involving a public official’s unlawful interest in a contract. I disagree. I would find that R.C. 2921.42 would not bar Kura’s “contract” with the staff and attorneys of Legal Aid to serve as employees for the FCPDO.
R.C. 2921.42(C) provides that under certain circumstances, a public official may have an interest in a public contract. R.C. 2921.42(C) allows a public official to have an interest in a contract where:
“(1) The subject of the public contract is necessary supplies or services for * * * the agency * * * involved; (2) The supplies or services are unobtainable elsewhere for the same or lower cost * * *; (3) The treatment accorded the * * * agency * * * is either preferential to or the same as that accorded other customers * * *; (4) The entire transaction is conducted at arm’s length, with full knowledge by the * * * agency * * * involved *' *
I would find that all four of these criteria are satisfied in this case, thereby allowing Kura to hire the staff and attorneys from Legal Aid. The legal services provided by the FCPDO are necessary to provide legal representation to indigent defendants. The salaries paid to the attorneys at the FCPDO are less than the cost of comparable representation from private firms. The Franklin County Public Defender Commission and the Franklin County Commissioners had full knowledge that Kura hired attorneys from Legal Aid and, in fact, approved of the same by their actions in support of the FCPDO as evidenced by the discussions at the commission’s meetings. In addition, Kura possessed the authority under R.C. 120.04(C) and 120.15(C), which, when read together, specifically grant a county public defender the power to contract for a “private program.” In 1984, R.C. 120.14(F) granted this right directly to Kura. Kura did so with the unanimous consent of the commission. Kura also served as the director of the FCPDO in his official capacity as a representative of the commission and *252therefore was permitted to serve in both roles as a representative of his agency. Ohio Ethics Comm. Advisory Ops. Nos. 82-004, 83-010, 84-001, and 96-005.
Even assuming arguendo that the elements of R.C. 2921.42(C) were not satisfied, Kura’s alleged illegal involvement in the contract would not render the contract void. Nowhere in R.C. 2921.42 does it indicate that improper conduct by the culpable party should render the entire contract void. The statute deals only with the criminal liability of a public official having an unlawful interest in a contract. Kura’s own alleged conflict would not render the formation of an entire unincorporated association or non-profit corporation invalid.5
C. CONCLUSION
The board has the specific duty under R.C. 145.04 to determine whether a person is a “public employee.” R.C. 145.01(A) states, “In all cases of doubt, the public employees retirement board shall determine whether any person is a public employee, and that decision is final.”
The standard of review of an administrative decision is whether the administrative body abused its discretion. See Kinsey v. Bd. of Trustees of Police & Firemen’s Disability & Pension Fund of Ohio (1990), 49 Ohio St.3d 224, 225, 551 N.E.2d 989, 992. If there is “some evidence” to support the board’s decision, then there is no abuse of discretion. Id.
I would find that the FCPDO was a legally authorized private entity pursuant to R.C. 120.04(C)(3) and 120.14(F). I would also find that the evidence clearly establishes that the FCPDO was a private entity. Finally, Mallory paid into the *253Social Security fund and will receive the full benefits of her contributions upon retirement.
In conclusion, I would find that the board did not abuse its discretion. Accordingly, I would have denied the writ of mandamus. Therefore, I respectfully dissent.
Moyer, C.J., and Cook, J., concur in the foregoing dissenting opinion.. It is undisputed that Legal Aid was a private entity.
. Cf. Walsh v. Bollas (1992), 82 Ohio App.3d 588, 612 N.E.2d 1252. In Walsh, the court held that the public employee’s improper conduct pursuant to R.C. 2921.42 voided the contract. The court in Walsh held that a sheriffs hiring of his son-in-law was an illegal interest in a public employment contract. • Thus, since there was a direct relationship between the contract and the conflict, and there was a benefit to a family member, the trial court determined that the contract was void because it violated public policy.
The case at bar is distinguishable from Walsh. Here there is no evidence of any actual harm as a result of the contract. The FCPDO attorneys and staff had a strong desire to remain separate from government employees for several reasons. The FCPDO attorneys and staff wanted to appear more credible to their clients (indigent criminal defendants), who were suspicious of the government, by operating under a private organization rather than as an arm of the government. The employees also desired health, sick leave, and vacation benefits other than those offered to public employees. Additional reasons cited by the commission members were the desire to be separately represented in any lawsuit by a private attorney, rather than the prosecutor’s office, their natural adversary, and their desire to keep their political affiliation private so as not to affect their employment. There is no evidence that the FCPDO was formed for any personal benefit of Kura or his friends or relatives. Therefore, I would find that there is no public policy reason to void the entire contract due to Kura’s alleged conflict, nor is there any authority to do so under R.C. 2921.42.