State ex rel. Athens Cty. Bd. of Commrs. v. Gallia, Jackson, Meigs, Vinton Joint Solid Waste Mgt. Dist. Bd. of Directors - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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The State ex rel. Board of County Commissioners of Athens County et al.,
Appellants, v. Board of Directors of the Gallia, Jackson, Meigs, Vinton Joint Solid
Waste Management District et al., Appellees.
[Cite as State ex rel. Athens Cty. Bd. of Commrs. v. Gallia, Jackson, Meigs,
Vinton Joint Solid Waste Mgt. Dist. Bd. of Directors (1996), Ohio St.3d .]
Mandamus to compel Board of Directors of the Gallia, Jackson, Meigs,
Vinton Joint Solid Waste Management District to comply with R.C.
343.012(B) -- Writ denied, when.

(No. 95-1274 -- Submitted May 7, 1996 -- Decided June 19, 1996.)

APPEAL from the Court of Appeals for Jackson County, No. 93CA730.

In February 1989, the boards of county commissioners of Athens, Gallia,
Hocking, Jackson, Meigs, and Vinton Counties entered into an agreement
establishing a joint solid waste management district. The members of the boards
of county commissioners of the foregoing counties comprised the members of the
board of directors of the six-county district.

The February 1989 agreement provided that if fees collected by the six-
county district were insufficient, the counties would share all operating costs and
expenses incurred by the district in the same proportion that the census

populations of the respective counties bear to the total census population of the six
counties. Based on the foregoing, Athens and Hocking Counties were responsible
for approximately forty-six percent of the six-county district's operating costs and
expenses.

The General Assembly subsequently enacted Sub.H.B. No. 723, effective
April 1993, which provided, inter alia, a one-time opportunity for solid waste
management districts to initiate changes in district composition independent of the
periodic submission of amended solid waste management plans. Title to Sub.H.B.
No. 723, 144 Ohio Laws, Part IV, 6244. In April 1993, pursuant to Section 5 of
Sub.H.B. No. 723, id. at 6355, and R.C. 343.012, appellants, the Boards of County
Commissioners of Athens and Hocking Counties, adopted resolutions requesting
the withdrawal of their counties from the six-county district in order to form their
own joint solid waste management district. The resolutions specified that the
withdrawals would be in the best interest of Athens and Hocking Counties.

Under R.C. 343.012(B), the proposed withdrawal of Athens and Hocking
Counties would not be effective without the consent of the boards of county
commissioners of the other counties forming the six-county district. In a letter
dated April 1993, the Vinton County Commissioners advised that they would not

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consider Hocking County's request for withdrawal from the six-county district
until they knew exactly what Hocking County wanted from the six-county district.
In a written reply, the Athens and Hocking County Commissioners requested that
the six-county district pay all expenses up to $50,000 involved in the development
and ratification of a solid waste management plan for the proposed Athens-
Hocking solid waste management district.

In June 1993, the six counties entered into an agreement that provided:

"1. The Counties of Gallia, Jackson, Meigs, and Vinton agree to the
withdrawal of Athens and Hocking Counties from the Athens, Gallia, Hocking,
Jackson, Meigs, and Vinton Joint Solid Waste Management District and hereby
agree to take all action necessary to permit the withdrawal of Athens and Hocking
Counties from Athens, Gallia, Hocking, Jackson, Meigs, and Vinton Joint Solid
Waste Management District;

"2. Athens and Hocking Counties shall receive a sum not to exceed
$50,000.00 from the Athens, Gallia, Hocking, Jackson, Meigs, and Vinton Joint
Solid Waste Management District, for invoices that relate directly to the planning
and ratification process of the Athens and Hocking Counties' Plan which sum is
payable on the date that the withdrawal becomes final and the Athens, Gallia,

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Hocking, Jackson, Meigs, and Vinton Joint Solid Waste Management District is
dissolved, provided that the Counties of Gallia, Jackson, Meigs, and Vinton have
formed a Joint Solid Waste Management District and obtained ratification of a
Solid Waste Management Plan;

"3. Athens County and Hocking County, jointly and severally, release and
forever discharge the Athens, Gallia, Hocking, Jackson, Meigs, and Vinton Joint
Solid Waste Management District, their successors and/or assigns, from all debts,
claims, demands, damages, actions, causes of action whatsoever, past, present or
future which can or may ever be asserted;

"4. The parties hereto, pursuant to Section 343.012(B) of the Ohio Revised
Code, agree that the proposed division of assets of the Athens, Gallia, Hocking,
Jackson, Meigs, and Vinton Joint Solid Waste Management District including, but
not limited to, funds of [sic, on] hand, credits, and real and personal property is
equitable, is consistent with the agreement to establish and maintain the district
and the prior contributions of Athens and Hocking Counties."

Pursuant to the agreement, the boards of county commissioners of each of
the six counties adopted resolutions approving the withdrawal of Athens and
Hocking Counties from the six-county district. The resolutions stated that "an

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agreement has been produced to provide for the orderly division of assets and
liabilities should the withdrawal become effective ***."

In December 1993, the Director of the Ohio Environmental Protection
Agency approved the joint solid waste management plans submitted by the
Athens-Hocking and Gallia, Jackson, Meigs, and Vinton joint districts. In the
same month, the chairman of the board of directors of the six-county district,
Hocking County Commissioner Robert E. Daubenmier, twice requested a meeting
in order to ascertain, apportion, and order a division of the six-county district
assets pursuant to R.C. 343.012(B). A December 17 meeting lacked the quorum
necessary to conduct business. Daubenmier canceled a subsequent meeting
scheduled for December 27 after he received letters from the commissioners of
Gallia, Jackson, Meigs, and Vinton Counties expressing their view that the June
1993 agreement executed by the six counties had already resolved the asset
division issue. According to a December 1993 financial report for the six-county
district, the balance in the main and escrow accounts totaled approximately
$528,000. The June 1993 agreement had given Athens and Hocking Counties up
to $50,000 to prepare their joint solid waste management plan for their new two-
county district.

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Appellants, the Boards of County Commissioners of Athens and Hocking
Counties, filed a complaint in the Court of Appeals for Jackson County to compel
appellee, the Board of Directors of the Gallia, Jackson, Meigs, Vinton Joint Solid
Waste Management District, to comply with R.C. 343.012(B) by scheduling a
meeting and ordering an apportionment of the predecessor six-county district's
assets on an equitable basis consistent with the February 1989 agreement
establishing the six-county district and the prior contributions of Athens and
Hocking Counties. Appellants also requested that the fiscal officers of the six-
county district disburse this equitable share of the six-county district's assets to
Athens and Hocking Counties. After the parties submitted stipulations and
depositions, the court of appeals denied the writ.

The cause is now before this court upon an appeal as of right.
___________________

Porter, Wright, Morris & Arthur, Anthony J. Celebrezze, Jr., Janet J. Henry
and Virginia E. Richards, for appellants.

Ochsenbein, Cole & Lewis and William S. Cole, for appellee Board of
Directors of the Gallia, Jackson, Meigs, Vinton Joint Solid Waste Management
District.

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____________________

Per Curiam. Appellants assert that the court of appeals erred in denying the
requested writ of mandamus. The court of appeals determined that appellee
district board did not possess a clear legal duty pursuant to R.C. 343.012(B) to
ascertain, apportion, and equitably divide the assets of the six-county district. The
court of appeals concluded that the district board had substantially complied with
R.C. 343.012(B). In so holding, the court of appeals declined to address the issue
of whether appellants possessed an adequate remedy in the ordinary course of law.

As a preliminary matter, the appellee board asserts that appellants are not
entitled to a writ of mandamus because appellants possess an adequate remedy at
law, i.e., an action to vacate the counties' June 1993 contract. See R.C. 2731.05
(writ of mandamus will not be issued when there is a plain and adequate remedy in
the ordinary course of law). However, it is evident that appellants seek to enforce
R.C. 343.012(B). While mandamus may not ordinarily be employed as a
substitute for an action at law to recover money, underlying public duties having
their basis in law may be compelled by a writ of mandamus. State ex rel. Levin v.
Schremp (1995), 73 Ohio St.3d 733, 735, 654 N.E.2d 1258, 1260.

7

In addition, although a writ of mandamus cannot issue to control a public
body's exercise of discretion, it can be issued to compel the public body to
exercise such discretion when it has a clear legal duty to do so. See State ex rel.
Huntington Ins. Agency, Inc. v. Duryee (1995), 73 Ohio St.3d 530, 534, 653
N.E.2d 349, 354. Mandamus is also appropriate to correct any abuse of discretion
in the proceedings of the district board. See, e.g., State ex rel. McMaster v. School
Emp. Retirement Sys. (1994), 69 Ohio St.3d 130, 133, 630 N.E.2d 701, 704-705;
State ex rel. Kelly v. Cuyahoga Cty. Bd. of Elections (1994), 70 Ohio St.3d 413,
414, 639 N.E.2d 78, 79. Based on the foregoing, appellants properly sought a writ
of mandamus to compel the district board to comply with R.C. 343.012(B), since
appellants do not possess an adequate remedy in the ordinary course of law.

As to the remaining prerequisites for a writ of mandamus, i.e., clear legal
right and clear legal duty, appellants contend that the court of appeals erred in
concluding that the district board had complied with R.C. 343.012(B). R.C.
343.012(B) provides:

"*** Upon the withdrawal of a county from a joint district, the board of
directors shall ascertain, apportion, and order a division of the funds on hand,
credits, and real and personal property of the district, either in money or in kind,

8

on any equitable basis between the district and the withdrawing county consistent
with the agreement to establish and maintain the district entered into and ratified
under division (A) of section 343.01 of the Revised Code and the prior
contributions of the withdrawing county."

"In construing a statute, a court's paramount concern is the legislative intent
in enacting the statute. *** In determining legislative intent, the court first looks
to the language in the statute and the purpose to be accomplished." State v. S.R.
(1992), 63 Ohio St.3d 590, 594-595, 589 N.E.2d 1319, 1323. Under R.C.
343.012(B), after the withdrawal of counties from a joint solid waste management
district, the board of directors of the district must (1) ascertain, (2) apportion, and
(3) order an equitable division of certain assets of the district consistent with the
initial agreement establishing the district and prior contributions of the
withdrawing counties.

Upon withdrawal, the district board must initially "ascertain" the funds on
hand, credits, and real and personal property of the district. In that "ascertain" is
not defined in R.C. Chapter 343, it must be accorded its usual, normal or
customary meaning. State ex rel. Herman v. Klopfleisch (1995), 72 Ohio St.3d

9

581, 584, 651 N.E.2d 995, 998; R.C. 1.42. "Ascertain" means "to render certain
or definite." Black's Law Dictionary (6 Ed.1990) 114.

The minutes of the six-county district board's 1993 meetings reveal no
ascertainment of the district assets specified in R.C. 343.012(B). Jackson County
Commissioner Robert Willis conceded that the June 1993 meeting minutes did not
reflect any discussion of the nature, extent, or amount of the six-county district's
assets other than a brief reference to the counties' June 1993 agreement. The
counties' June 1993 agreement merely stated that the counties "now desire to
ascertain, ap[p]ortion and order a division" of the district assets but did not
evidence any actual ascertainment of district assets.

The court of appeals relied on evidence that the counties had access to
district balance sheets and financial information to conclude that the six-county
board substantially complied with the requirement of R.C. 343.012(B) to ascertain
district assets. However, Willis admitted that without the district fiscal officers
present at the board's June 11, 1993 meeting, the board would not have had access
to any comprehensive financial reports. Additionally, Gallia County
Commissioner Harold Montgomery testified that the district balance sheets merely
showed the amounts appropriated for the use of the district and did not reflect the
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revenues received by the district. Finally, the court of appeals itself noted that the
district balance sheets did not include all of the pertinent assets. Accordingly, it is
evident that the district board did not comply with the R.C. 343.012(B)
requirement of ascertaining district assets.

The court of appeals further concluded that the six-county board
substantially complied with the R.C. 343.012(B) requirements of apportionment
and equitable division of district assets. The court of appeals determined that the
division, which was based on the district board's December 1993 financial report
and which gave appellants less than ten perecent of the six-county district's assets,
was equitable because appellants secured the remaining counties' consent to their
withdrawal by promising to limit their demands to a maximum of $50,000, which
is what they received.

The court of appeals erred in so holding for the following reasons. Initially,
R.C. 343.012(B) presupposes the remaining counties' consent to the withdrawal of
other counties prior to the imposition of the specified duties, which only arise
"[u]pon the withdrawal of a county from a joint district ***." Therefore, the
consent of the remaining counties is not considered in determining the existence of
a duty to equitably divide district assets. As appellants note, consent to
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withdrawal is not one of the assets specified in R.C. 343.012(B) ("funds on hand,
credits, and real and personal property of the district").

Second, the equitable division of district assets must be consistent with the
counties' initial agreement to establish and maintain the district and the prior
contributions of the withdrawing counties. R.C. 343.012(B). The record discloses
a recitation in the counties' June 1993 agreement that the district board considered
the counties' original agreement and the prior contributions of Athens and
Hocking Counties. However, according to the counties' 1989 agreement,
appellants were responsible for approximately forty-six percent of the six-county
district's costs and operating expenses if the district fees were insufficient to cover
these costs and expenses. Receiving less than ten percent of the district assets
under these circumstances does not appear equitable for purposes of R.C.
343.012(B).

Based on the foregoing, the court of appeals erred in holding that the district
board substantially complied with R.C. 343.012(B). However, a reviewing court
is not authorized to reverse a correct judgment merely because erroneous reasons
were assigned as a basis thereof. State ex rel. Carter v. Schotten (1994), 70 Ohio
St.3d 89, 92, 637 N.E.2d 306, 309.
12

Appellees pled several affirmative defenses in their answer to appellants'
amended complaint, including waiver. Waiver is a voluntary relinquishment of a
known right. State ex rel. Ryan v. State Teachers Retirement Sys. (1994), 71 Ohio
St.3d 362, 368, 643 N.E.2d 1122, 1128. "`As a general rule, the doctrine of
waiver is applicable to all personal rights and privileges, whether secured by
contract, conferred by statute, or guaranteed by the Constitution, provided that the
waiver does not violate public policy.'" Sanitary Commercial Serv., Inc. v. Shank
(1991), 57 Ohio St.3d 178, 180, 566 N.E.2d 1215, 1218, quoting State ex rel. Hess
v. Akron (1937), 132 Ohio St. 305, 307, 8 O.O. 76, 77, 7 N.E.2d 411, 413.
In
Shank, supra, we held that a party aggrieved by an order from the
Director of Environmental Protection could waive his statutory right to appeal by
entering into a settlement agreement supported by sufficient consideration.
Similarly, in the case at bar, appellants Athens and Hocking Counties entered into
the June 1993 agreement with the remaining four counties. The agreement
specifically referred to the R.C. 343.012(B) division of district assets and provided
that Athens and Hocking Counties "release and forever discharge the Athens,
Gallia, Hocking, Jackson, Meigs, and Vinton Joint Solid Waste Management
District, their successors and/or assigns, from all debts, claims, demands, damages,
13

actions, causes of action whatsoever, past, present or future which can or may ever
be asserted."

Six-county district Board Chairman Daubenmier conceded that the plain
language of the counties' June 1993 agreement waived any claim that the
withdrawing counties possessed. The agreement was signed by all of the
commissioners of Athens and Hocking Counties as well as by their respective
counsel. It was supported by sufficient consideration, i.e., the consent of the
remaining four counties to the withdrawal. Without the withdrawing counties'
agreement to accept a maximum potential amount of $50,000 as the proposed R.C.
343.012(B) division of district assets, the remaining counties would not have
consented to their withdrawal.

Further, as the court of appeals determined, the June 1993 agreement was
not against public policy. See Gugle v. Loeser (1944), 143 Ohio St. 362, 28 O.O.
318, 55 N.E.2d 580, paragraph one of the syllabus ("Agreements voluntarily and
fairly made between competent persons are usually valid and enforceable, and the
principle that agreements opposed to public policy are not enforceable should be
applied cautiously and only in circumstances patently within the reasons on which
that doctrine rests."). Although the withdrawing counties did not receive what
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they might have been entitled to under a division of district assets pursuant to R.C.
343.012(B), their resolutions confirmed that their withdrawal from the six-county
district was in their best interests. There is nothing in R.C. Chapter 343 which
precludes withdrawing counties from waiving their right to ascertainment,
apportionment, and equitable division of district assets under R.C. 343.012(B) in
order to receive the remaining counties' consent to their withdrawal. Cf. Shank,
supra, 57 Ohio St.3d at 181, 566 N.E.2d at 1218 (nothing in Ohio Constitution or
in R.C. Chapter 3745 bars waiver of right to appeal). In addition, settlement
agreements such as the June 1993 agreement executed by the parties here are
valid, enforceable, and highly favored in the law. Continental W. Condominium
Unit Owners Assn. v. Howard E. Ferguson, Inc. (1996), 74 Ohio St.3d 501, 502,
660 N.E.2d 431, 432.

For the foregoing reasons, the court of appeals properly denied the writ of
mandamus. It would be incongruous to permit appellants, who voluntarily signed
the agreement while represented by counsel, to obtain the benefits of the June
1993 agreement (the consent of the remaining counties to their withdrawal from
the six-county district plus up to $50,000 in planning expenses for their new
district) without accepting the accompanying burdens (release of any claims,
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including those under R.C. 343.012[B], to further district assets). See State ex rel.
Johnson v. Cleveland Hts./Univ. Hts. School Dist. Bd. of Edn. (1995), 73 Ohio
St.3d 189, 192, 652 N.E.2d 750, 752. Finally, as the court of appeals noted, "[i]f
the contract is invalid, then the consents are invalid *** [and] the clear legal duty
required of respondents under R.C. 343.012(B) to equitably divide the assets
would not arise until the consents were obtained."

Accordingly, the judgment of the court of appeals is affirmed.

Judgment affirmed.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
STRATTON, JJ., concur.

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