Oregon v. Dansack - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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City of Oregon v. Dansack, Mayor.
[Cite as Oregon v. Dansack (1993), Ohio St.3d .]
Mandamus to compel mayor to execute a contract -- Writ denied,
when.
(No. 92-2446 -- Submitted August 16, 1993 -- Decided
December 8, 1993.)
In Mandamus.
On Motions for Summary Judgment.
The city of Oregon, relator, seeks a writ of mandamus to
compel its mayor, Michael P. Dansack, Jr., respondent, to
execute a contract. The contract was authorized by Ordinance
No. 143-1992, which city council enacted on September 8, 1992.
The ordinance directed the mayor and the clerk-auditor of the
city to execute a contract with William Hayes. Hayes was to
conduct an investigation of alleged abuse of authority in the
police department and report the results to the city within
seventy-five days.
The mayor vetoed the ordinance on September 12, 1992, but
council passed it over his veto on September 14, 1992. The
complaint alleges that the mayor still has failed to execute
the contract. Both parties have filed motions for summary
judgment.

Reminger & Reminger Co., L.P.A., and Nick C. Tomino, for
relator.
Newcomer & McCarter and C. Thomas McCarter, for respondent.

Per Curiam. We grant respondent's motion for summary
judgment and deny the writ for the following reasons.
I
Authority to Adopt the Ordinance.
Relator alleges that city council has authority under the
city charter to approve contracts, and the mayor has the duty
to execute them. Respondent argues that he has the authority
under the charter to "evaluate and discipline" members of the
police department and that the proposed contract is an attempt
by council to exert authority in this area in which it has no
power.

Section 8, Article III of the Charter of the city of
Oregon states in part:
"The Council shall have and possess:
"(a) All of the legislative powers of the City as may now
or hereafter may be granted by the Constitution and laws of
Ohio to legislative bodies of municipalities, and such other
powers as may be granted by this Charter and as are now or may
hereafter be granted by the laws of Ohio to Boards of Control,
Municipal Tax Commissions, Boards of Trustees of Public
Affairs, Boards of Cemetery Trustees, Recreation Boards, or any
other municipal commission, board or body now or hereafter
created by law, except as otherwise provided by the
Constitution of Ohio or this Charter."
This obviously confers broad powers on city council. In
State ex rel. Holloway v. Rhodes (App. 1940), 33 Ohio Law Abs.
26, 35 N.E.2d 987, the Court of Appeals for Franklin County
considered a similar problem. There, city council had
authorized a contract for the investigation of gas-rate
expenditures. The investigator sought to compel payment of his
fee, and the city auditor refused payment on grounds that
council lacked authority to employ such an investigator. The
auditor argued, in part, that a state statute precluded such
employment. The statute stated in part that council could
"neither appoint nor confirm any officer or employee in the
city government except those of its own body * * *." G.C.
4211. The court, however, found that this statute should be
read in conjunction with G.C. 4210, which provided in part that
members of council, within ten days from the commencement of
their term, should elect officers and other council employees.
The court concluded that the ten-day provision was directory,
not mandatory, and further stated:
"Regardless of legislation, the city council has an
inherent power to make full and complete investigation on any
matter coming within their operative function, whether in
contemplation of future legislation or not. Where the nature
of the investigation is such that the council needs competent
or expert services in aiding them in determining their official
duty, there should be no question that council has the inherent
right to make such employment." Id. at 30, 35 N.E.2d at 990.
In the instant case, Section 8(a), Article III of the
charter grants council the broadest authority possible under
state law, except as restricted by the charter itself. The
only potentially restrictive parts of the charter are the
clauses in Section 6 of Article IV, which provide that the
mayor "shall exercise control of all departments and
divisions," and that he has the authority to appoint,
discipline and remove employees, "subject to confirmation by a
majority of the members of Council." Such passages do not
appear inconsistent with council's appointing its own
investigator. R.C. 731.04, the successor to G.C. 4210, still
provides that a city council may "elect" such employees as are
necessary, and R.C. 705.21 authorizes investigations by
council. Moreover, to the extent that discipline or removal of
employees might become involved, Section 6, Article IV of the
Oregon Charter gives council approval power over such an action
by the mayor, from which a right to conduct its own
investigation may be implied. Otherwise, the charter appears

silent on matters of investigation.
Accordingly, we conclude in this case that the legislative
authority of council includes the power to investigate and to
appoint employees to conduct the investigation in question.
II
Compliance with R.C. 5705.41 and Lapse of Appropriation
Respondent argues in support of his motion for summary
judgment that council failed to comply with R.C. 5705.41. When
relator attempts to establish compliance in its response to the
motion, via affidavit of the city clerk-auditor, respondent
argues that the evidence shows that the funds have lapsed.
This latter argument has merit.
R.C. 5705.41 provides in part:
"No subdivision or taxing unit shall:
"* * *
"(B) Make any expenditure of money unless it has been
appropriated as provided in such chapter [R.C. Chapter 5705];
"(C) Make any expenditure of money except by a proper
warrant drawn against an appropriate fund;
"(D) * * * make any contract or give any order involving
the expenditure of money unless there is attached thereto a
certificate of the fiscal officer of the subdivision that the
amount required to meet the obligation or, in the case of a
continuing contract to be performed in whole or in part in an
ensuing fiscal year, the amount required to meet the obligation
in the fiscal year in which the contract is made, has been
lawfully appropriated for such purpose and is in the treasury
or in process of collection to the credit of an appropriate
fund free from any previous encumbrances. * * *"
Respondent also cites Section 8(e), Article III of the
city charter, which states in part:
"No contract shall be made on behalf of the City unless
first authorized by Council, and no contract shall be binding
upon the City until it has first been authorized or approved
and the necessary money has been lawfully appropriated therefor
* * *."
Respondent cites the absence of any appropriation as
evidence of the lack of a clear duty on his part to execute the
contract. However, relator presents evidence in the form of an
affidavit of the clerk-auditor, the city's fiscal officer,
dated February 5, 1993, averring that funds were appropriated
and available in a professional services account and that she
issued a purchase order to encumber the funds to pay Hayes
under Ordinance No. 143-1992. Relator also presents a copy of
the purchase order, dated December 30, 1992, and a copy of the
appropriation, effective December 30, 1991 for the period
January 1, 1992 through December 31, 1992.
Respondent nevertheless argues that the appropriation has
lapsed and is insufficient evidence of a clear duty to act. He
appears to be technically correct. In Trumbull Cty. Bd. of
Edn. v. State ex rel. Van Wye (1930), 122 Ohio St. 247, 171
N.E. 241, paragraph three of the syllabus, we held, regarding
mandamus, that a court is not limited to considering facts and
circumstances at the time a proceeding is instituted, but
should consider the facts and conditions at the time it
determines whether to issue a peremptory writ. There is
currently no evidence of an unencumbered appropriation before

the court. The only evidence is of a presumably valid
appropriation for the calendar year 1992 that has clearly
ended. Accordingly, the writ is denied on this technical
failure to present evidence.
If a current, similar appropriation is available in fact,
then the respondent would have a duty to execute the contract.
Under Section 6, Article IV of the charter, the mayor and
clerk-auditor have the duty to execute city contracts. This
would include the duty to encumber a valid appropriation if one
were available in fact. Thus, the mayor could not avoid his
duty to execute the contract outside the mandamus context on
the ground that no appropriation has been identified or
encumbered. It is his and the clerk-auditor's duty to identify
and encumber the appropriation if this can lawfully be done.
However, in this case, relator has failed to prove the
existence of a current appropriation and thus fails to
establish a clear right to relief.
Accordingly, we grant respondent's motion for summary
judgment and deny the writ.

Writ denied.
Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick, F.E.
Sweeney and Pfeifer, JJ., concur.