THE STATE EX REL. BELL, APPELLANT, v. BROOKS, APPELLEE.
No. 2010-1836
Supreme Court of Ohio
September 28, 2011
130 Ohio St.3d 87, 2011-Ohio-4897
Submitted August 8, 2011
{¶ 14} We accept the board‘s findings of fact and misconduct and agree that the appropriate sanction for respondent‘s misconduct is a six-month suspension fully stayed on the condition that respondent commit no further misconduct.
{¶ 15} Accordingly, we suspend James G. Corrigan from the practice of law in Ohio for six months, all stayed on the condition that he commit no further misconduct. If respondent fails to comply with the condition of the stay, the stay will be lifted and respondent will serve the full six-month suspension. Costs are taxed to respondent.
Judgment accordingly.
O‘CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
O‘DONNELL, J., dissents and would impose a public reprimand.
Carrabine & Reardon Co., L.P.A., and James R. Flaiz; and Thrasher, Dinsmore & Dolan, L.P.A., and Todd C. Hicks, for relator.
James G. Corrigan, pro se.
{¶ 1} This is an appeal from a judgment denying the requests of appellant, Greg A. Bell, for writs of mandamus to compel appellee, David W. Brooks, the managing director of property and casualty insurance for County Risk Sharing Authority, Inc. (“CORSA“), a joint self-insurance pool whose members include the majority of Ohio‘s counties, to provide certain CORSA records pursuant to
I. Facts
A. CORSA
{¶ 2} In the mid-1980s, the General Assembly authorized counties to use risk-sharing pools like CORSA. See
{¶ 3} As of April 2009, CORSA‘s members included 62 Ohio counties and 19 county facilities. CORSA operates like an insurance company by providing coverage and risk-management services to its members, except that it pools its clients’ resources rather than charging premiums. CORSA receives the vast majority of its income from member contributions.
{¶ 4} Neither the state nor any other government entity controls CORSA‘S day-to-day business operations. Instead, CORSA is operated by an independent board of directors elected by its members. The board is composed of nine members, commissioners from nine different counties. http://www.corsa.org/BoardofDirectors/tabid/60/Default.aspx. The Internal Revenue Service recognizes that CORSA is a government instrumentality, and thus it is exempt from federal taxation.
{¶ 5} By letter dated September 2, 2009, Bell requested that CORSA provide him with copies of certain records pursuant to
{¶ 6} “All financial records relating to contract(s) between CORSA and Madison County, Ohio, including but not limited to: all invoices sent to Madison County; all records showing allocation of Madison County payments into CORSA financial accounts and sub-accounts; CORSA‘s chart of accounts; all records showing disbursements from CORSA financial accounts as payments to third-parties in performance of the contract(s) with Madison County.”
{¶ 7} In his response on behalf of CORSA, Brooks provided some of the requested records, but for the requested financial records other than the Madison County invoices, CORSA refused to provide copies, asserting that they were not public records. Brooks further informed Bell that CORSA was a private corporation and not a public office subject to
{¶ 8} By letter dated September 15, 2009, Bell requested that Brooks provide copies of “[a]ll minutes of every meeting of the CORSA board of trustees, for the period from January 1, 1999 up to and including the most recently convened meeting” pursuant to
{¶ 9} By letter dated September 28, 2009, Bell requested that Brooks provide copies of “[a]ll compensation records for CORSA executive and administrative staff during the period from January 1, 1999 up to and including the records indicating the present compensation amounts” pursuant to
C. Mandamus Cases
{¶ 10} Bell filed complaints in the court of appeals for writs of mandamus to compel Brooks to provide copies of the requested CORSA records in accordance with
{¶ 11} Following a conference before a court of appeals magistrate, on January 20, 2010, the magistrate granted Brooks‘s motion and consolidated the mandamus cases and ordered the parties to file evidence and briefs on only the issue whether CORSA is a public office for purposes of the Public Records Act. The parties then filed evidence and briefs relating to that specific issue.
{¶ 12} The magistrate issued a decision recommending that the court of appeals deny the writs of mandamus because Bell had failed to establish by clear and convincing evidence that CORSA is the functional equivalent of a public office so as to be subject to the Public Records Act. Bell filed objections to the
{¶ 13} In September 2010, the court of appeals entered a judgment overruling Bell‘s objections to the magistrate‘s decision, adopting the decision, and denying the requested writs of mandamus.
{¶ 14} This cause is now before the court for our consideration of Bell‘s appeal as of right from the court of appeals’ judgment.1
II. Legal Analysis
A. Mandamus: Functional Equivalent of a Public Office
{¶ 15} For Bell‘s public-records mandamus claims, “[m]andamus is the appropriate remedy to compel compliance with
{¶ 16} The court of appeals held that Bell‘s claims lacked merit because CORSA is a private entity. For purposes of the Public Records Act, an office is subject to the act if it is a “state agency, public institution, political subdivision, or other organized body, office, agency, institution, or entity established by the laws of this state for the exercise of any function of government.”
{¶ 17} In arguing that the court of appeals erred in determining that CORSA was not a public office subject to
{¶ 18} In State ex rel. Oriana House, Inc. v. Montgomery, 110 Ohio St.3d 456, 2006-Ohio-4854, 854 N.E.2d 193, at the syllabus, we set forth the applicable test for determining when a private entity is a public office subject to the Public Records Act:
{¶ 19} “1. Private entities are not subject to the Public Records Act absent a showing by clear and convincing evidence that the private entity is the functional equivalent of a public office.
{¶ 20} “2. In determining whether a private entity is a public institution under
{¶ 21} We will now apply the functional-equivalency test to CORSA.
1. Governmental Function
{¶ 22} Unlike operating community-based correctional facilities, which is the function performed by the private entity at issue in Oriana House, 110 Ohio St.3d 456, 2006-Ohio-4854, 854 N.E.2d 193, at ¶ 28, providing insurance to counties, which is the function being performed by CORSA, has not been established to be a historically governmental function. As the court of appeals concluded, “[i]nsurance has traditionally been provided by private entities * * *” State ex rel. Bell v. Brooks, Franklin App. Nos. 09AP-861, 09AP-944, and 09AP-1055, 2010-Ohio-4266, 2010 WL 3527580, at ¶ 8. Therefore, CORSA is not performing a historically governmental function.
2. Level of Governmental Funding
{¶ 23} From the audit report of CORSA submitted by Bell into evidence, over 88 percent of its income for the fiscal year ending April 30, 2008, consisted of member contributions. And member contributions accounted for an even higher percentage of CORSA‘s income for the fiscal year ending April 30, 2009, because CORSA had a negative value for its net investment income. This level of government funding is significant. See Oriana House at ¶ 32 (entity‘s receipt of 88 percent of its total revenues from public sources found to be a significant level of government funding); State ex rel. Repository v. Nova Behavioral Health, Inc., 112 Ohio St.3d 338, 2006-Ohio-6713, 859 N.E.2d 936, ¶ 32-33 (entity‘s receipt
3. Extent of Government Involvement or Regulation
{¶ 24} There is no evidence that any government entity controls the day-to-day operations of CORSA. The evidence establishes that CORSA is a private corporation operated by an independent board of directors composed of nine individual county commissioners and is not controlled by any county board of commissioners.
4. Creation of Entity
{¶ 25} Like the entities in Oriana House and Repository, CORSA was created as a private, nonprofit corporation, was not established by a government entity, and was not formed as an alter ego of a governmental agency to avoid the requirements of the Public Records Act. Oriana House, 110 Ohio St.3d 456, 2006-Ohio-4854, 854 N.E.2d 193, at ¶ 34; Repository at ¶ 37.
5. Weighing of Factors
{¶ 26} The court of appeals did not err in concluding that Bell had failed to establish by the requisite clear and convincing evidence that CORSA is the functional equivalent of a public office subject to the Public Records Act. Three factors of the functional-equivalency test support Brooks‘s position that CORSA is not the functional equivalent of a public office, and one factor supports Bell‘s position that it is.
{¶ 27} For the sole factor favoring Bell‘s claim—the level of government funding—we have emphasized that the “fact that a private entity receives government funds does not convert the entity into a public office for purposes of the Public Records Act.” Oriana House at ¶ 29; Repository at ¶ 38. “The Public Records Act was not designed to allow public scrutiny of ‘all entities that receive funds that at one time were controlled by the government.‘” Repository at ¶ 38, quoting Oriana House at ¶ 36.
{¶ 28} Nor does the mere fact that
{¶ 29} Bell‘s requests for writs of mandamus were for three different categories of CORSA records: (1) financial records relating to contracts between CORSA and Madison County, (2) minutes of CORSA‘s board meetings, and (3) compensation records for CORSA‘s executives and administrative staff. Bell concedes that the court of appeals’ resolution of the issue whether CORSA is the functional equivalent of a public office resolved his claim for CORSA‘s board-meeting minutes. Therefore, we affirm the denial of the writ of mandamus for those records.
B. CORSA‘s Financial and Compensation Records
{¶ 30} For the remaining requested records, however, the court of appeals erred in holding that its determination that CORSA is not the functional equivalent of a public office for purposes of
{¶ 31} The Revised Code requires the disclosure of certain financial and compensation records of nonprofit corporations and associations with government-service contracts under specified circumstances, even if they are not public offices for purposes of
{¶ 32} “(A) Any governmental entity or agency and any nonprofit corporation or association, except a corporation organized pursuant to Chapter 1719. of the Revised Code prior to January 1, 1980 or organized pursuant to Chapter 3941. of the Revised Code, that enters into a contract or other agreement with the federal government, a unit of state government, or a political subdivision or taxing unit of this state for the provision of services shall keep accurate and complete financial records of any moneys expended in relation to the performance of the services pursuant to such contract or agreement according to generally accepted accounting principles. Such contract or agreement and such financial records shall be deemed to be public records as defined in division (A)(1) of section 149.43 of the Revised Code and are subject to the requirements of division (B) of that section, except that:
{¶ 33} “(1) Any information directly or indirectly identifying a present or former individual patient or client or his diagnosis, prognosis, or medical treatment, treatment for a mental or emotional disorder, treatment for mental retardation or a developmental disability, treatment for drug abuse or alcoholism, or counseling for personal or social problems is not a public record;
{¶ 34} “(2) If disclosure of the contract or agreement or financial records is requested at a time when confidential professional services are being provided to a patient or client whose confidentiality might be violated if disclosure were made
{¶ 35} “(3) Any nonprofit corporation or association that receives both public and private funds in fulfillment of any such contract or other agreement is not required to keep as public records the financial records of any private funds expended in relation to the performance of services pursuant to the contract or agreement.
{¶ 36} “(B) Any nonprofit corporation or association that receives more than fifty per cent of its gross receipts excluding moneys received pursuant to Title XVIII of the “Social Security Act,” 49 Stat. 620 (1935), 42 U.S.C. 301, as amended, in a calendar year in fulfillment of a contract or other agreement for services with a governmental entity shall maintain information setting forth the compensation of any individual serving the nonprofit corporation or association in an executive or administrative capacity. Such information shall be deemed to be public records as defined in division (A)(1) of section 149.43 of the Revised Code and is subject to the requirements of division (B) of that section.
{¶ 37} “Nothing in this section shall be construed to otherwise limit the provisions of section 149.43 of the Revised Code.” (Emphasis added.)
{¶ 38} The court of appeals magistrate improperly restricted the submission of evidence and briefs to the functional-equivalency issue and neglected to consider Bell‘s claims for the release of CORSA‘s financial and compensation records under
{¶ 39} In this regard, Brooks contends on appeal—and claimed in his response to Bell‘s objections—that Bell had waived his
{¶ 40} Therefore, the court of appeals erred in denying Bell‘s mandamus claims for release of CORSA‘s financial and compensation records.
{¶ 41} Because the court of appeals did not err in holding that Bell did not establish that CORSA is the functional equivalent of a public office for purposes of
Judgment accordingly.
O‘CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O‘DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
Phillip Wayne Cramer, for appellant.
Isaac, Brant, Ledman & Teetor, L.L.P., Mark Landes, and Mark H. Troutman, for appellee.