705 N.E.2d 1247 | Ohio Ct. App. | 1997
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *186 During January 1995, Simon L. Leis, Jr., Sheriff of Hamilton County, began to seek funding for painting the interior walls, trim, and floors of the Hamilton County Justice Center. The estimated cost of the project was in excess of $150,000. In February 1995, various discussions took place between the sheriff, County Administrator David J. Krings, Assistant Hamilton County Prosecuting Attorney James Harper, and various other county officials regarding the use of prisoners to paint the Justice Center. Ultimately, the decision was reached to use prisoners to paint the Justice Center. Bids were taken for the contract to supply paint and supplies to be used in the painting of the Justice Center. The paint and supplies contract was ultimately awarded to the Wilson Paint Company. *187
On April 6, 1995, R. Mike Campbell, Superintendent of County Buildings, submitted to the county administrator a request for transfer of funds in the amount of $144,350 for the painting of the Justice Center. The request for transfer stated:
"This Transfer will be for the painting of the Hamilton County Justice Center. Paint will include 375 gallons of trim paint, 2,225 gallons of wall paint and enough 100% solid floor epoxy to cover 200,000 sq/ft.
"All transfers will be for the purchase of wall and trim paints, 100% epoxy for the floors and miscellaneous painting supplies needed to do the work at the Hamilton County Justice Center."
Submitted with the request for transfer of funds was "Transfer Resolution No. 10," seeking approval for the request for transfer of funds. On April 26, 1995, the board of county commissioners approved Transfer Resolution No. 10 by a two-to-one vote.
On May 1, 1995, plaintiffs-appellants Ralph C. Jones and Ronald R. Houser, as taxpayers of Hamilton County, delivered a written request to Hamilton County Prosecuting Attoney Joseph T. Deters, requesting that the prosecutor institute an action, pursuant to R.C.
Plaintiffs-appellants, Jones, Houser, and the International Brotherhood of Painters and Allied Trades, Painters District Council No. 12 of Greater Cincinnati and Northern Kentucky, instituted this action, pursuant to R.C.
A hearing was held May 5, 1995, on the motion for a temporary restraining order. The sheriff and plaintiff-appellant Jones testified. Following the hearing, the parties stipulated that no painting would take place inside the Justice Center *188 for fourteen days. On May 22, 1995, a hearing on the motion for a preliminary injunction was held. On June 23, 1995, a stipulated order provided that the matter would be submitted to the court on plaintiffs-appellants' motion for a permanent injunction. By judgment entry dated September 22, 1995, the trial court denied the motion for a permanent injunction. Appellants timely appealed, raising four assignments of error for our review.
The first assignment of error alleges:
"The trial court erred as a matter of law by applying traditional equitable criteria and balancing the equities in denying plaintiffs-appellants' motion for permanent injunction."
R.C.
The trial court's judgment entry of September 22, 1996 states:
"This matter came before the court to determine on the merits whether to issue a permanent injunction, as prayed for in the Plaintiffs' Verified Complaint. After consideration of the memorandum, evidence received during the hearing on the matter, and the arguments of counsel, the court concludes that the balancing on the factors required by law does not weigh in favor of the issuance of an injunction."
Appellants argue, citing Ackerman v. Tri-City Geriatric Health Care, Inc. (1978),
In Ackerman, the Ohio Supreme Court held: *189
"In an action by the Director of Health to enjoin the operation of an unlicensed nursing home pursuant to R.C.
The Supreme Court went on to point out that statutory actions granting government agents the right to sue to enjoin activities deemed harmful by the General Assembly are not; designed primarily to do justice to the parties but to prevent harm to the general public. Therefore, statutory injunctions should issue if the statutory requirements are fulfilled. Id. at 57, 9 O.O.3d at 65-66,
The Ackerman court was dealing with R.C.
In State ex rel. Miller v. Anthony (1995),
R.C.
We now turn to the third assignment of error, which alleges that the trial court erred in denying appellants' first request for injunctive relief. Appellants argue that there was reasonable cause to believe that a misapplication of county funds had occurred or was about to occur in that appellees (1) failed to comply with the requirements of R.C.
Appellants argue that appellees' contract with Wilson Paint should have been enjoined because one of the provisions of the bid was materially altered. Sheriff Leis testified that on May 22, 1995, a representative of Wilson Paint recommended that a water-based paint, which differed from the paint specified in Wilson Paint's bid, be used for the him of the Justice Center. The substitute paint cost less than the trim paint originally contained in the bid specification. The use of the substitute paint, appellants argue, constituted a material alteration of Wilson Paint's bid.
Initially, we note that in the stipulations of the parties, appellants withdrew the portions of paragraphs eighteen and thirty-seven of their complaint that r elated to the purchase of paint and supplies. Further, we hold that eliminating trim paint costing $4,968.75 out of a contract totaling $126,736.25 and replacing it with paint that costs less does not constitute such a material alteration of Wilson Paint's bid as to require the trial court to enjoin the execution of the paint and supplies contract.
Appellants next argue that the trial court should have issued an injunction because no plans for the painting of the Justice Center were made by a registered architect or a registered engineer as required by R.C.
R.C.
"When it becomes necessary for the board of county commissioners of a county to erect or cause to be erected a public building, or a substructure for a bridge, or an addition to or alteration thereof, before entering into any contract therefore or repair thereof or for the supply of any materials therefore, they shall cause to be made by a registered architect or registered professional engineer the following:
"(A) Full and accurate plans shoving all necessary details of the work and materials required, with working plans suitable for the use of mechanics or other builders in the construction thereof, drawn so as to be easily understood;
"(B) Accurate bills, showing the exact amount of the different kinds of material, necessary for the construction, to accompany the plans;
"(C) Full and complete specifications of the work to be performed showing the manner and style required to be done, with such directions as will enable a competent builder to carry them out, and which will afford to bidders all needful information; *191
"(D) A full and accurate estimate of each item of expense, and of the aggregate cost thereof."
R.C.
In announcing that it would accept bids to supply paint for the Justice Center project, the county set forth specifications that included 2,225 gallons of wall paint, 375 gallons of trim paint, and enough floor paint to cover 200,000 square feet. The contract for the purchase of paint and supplies was obtained through the competitive bidding process. For the labor portion of the Justice Center project, the sheriff proposed to employ inmate labor, for which no contract would be executed. The trial court did not err in refusing to grant an injunction based upon any alleged violations of R.C.
Appellants also argue that the county's failure to submit plans for the painting of the Justice Center to the Ohio Department of Rehabilitation and Correction violated R.C.
"Before their adoption by the proper officials, plans for new jails, workhouses, children's homes, infirmaries, state institutions, and municipal lockups or prisons, and for important additions to or alterations in such existing institutions, shall be submitted to the department of human services, the department of mental health, the department of mental retardation and developmental disabilities, or the department of rehabilitation and correction, as the case requires, for its approval."
Appellees presented the testimony of Joseph Schmidtz, Director of Corrections for the Hamilton County Sheriff's Department. Schmidtz was formerly a jail inspector for the Ohio Department of Rehabilitation and Correction. Schmidtz testified that he was familiar with R.C.
The third assignment of error is overruled. *192
Appellants' fourth assignment of error alleges that the trial court erred in denying their second request for injunctive relief. Appellants argue that the use of inmates to paint the inside of the Justice Center is not an appropriate form of inmate labor under the sheriff's work-detail program.
The sheriff of Hamilton County has operated a voluntary work-detail program since at least 1988. On July 8, 1987, the Hamilton County Municipal Court entered an order that approved a work-detail program granting inmates good-time credits on the basis of two days' credit for every one day completed in the program. On November 23, 1987, the Hamilton County Municipal Court adopted a resolution approving the work-detail program. A resolution was approved by the Hamilton County Court of Common Pleas on April 18, 1990, granting inmates two days' credit for each day worked, except for inmates on the kitchen detail, who were to receive three days' credit for each day worked. The stipulated documents indicate that the inmates were employed in various Justice Center occupations, which included doing minor repairs, painting, removing trash, washing walls, and cleaning floors and carpets. The sheriff testified that he planned to use inmates who volunteered for the work-detail program to paint the Justice Center. He further testified that inmates had done "odds and ends" painting at the Justice Center for the past six or seven years.
The sheriff testified that each "pod" in the Justice Center would be painted individually. A pod is a section of the jail housing eight, sixteen, twenty-four, or thirty-two inmates. The inmates in each pod would be moved, and the pod would be completely painted before beginning the next pod. The sheriff stated that a test pod had been painted without incident.
Appellants argue that the painting of the Justice Center is not an appropriate form of inmate labor because the project is large and beyond the scope of the work-detail program, and because the inmates have done only "odds and ends" painting in the past. Further, appellants argue, there are unresolved safety issues concerning inmates attempting such a large project.
R.C.
Inside painting is clearly work done on jail premises that is "necessary for the proper maintenance" of the Justice Center. Therefore, it is an appropriate form of inmate labor pursuant to statute. Further, painting has been included as inmate employment under the sheriff's work-detail program. We find nothing that requires painting done by inmates to be limited to small-scale projects.
Appellees' expert witness testified that the paint specified for the Justice Center project would pose no safety risks unless it was swallowed. Further, the expert testified that no training was needed to apply the paint. Appellants' expert witness testified that certain safety problems could arise with the specified paint and that special training was needed in order to apply the paint correctly. The trial court was free to believe appellees' expert witness and to conclude that there were no unresolved safety issues concerning the painting of the Justice Center.
Appellants argue that if the painting of the Justice Center is an appropriate form of inmate labor under the work-detail program, the Ohio prevailing-wage law, R.C.
R.C.
"No person, firm corporation, or public authority that constructs a public improvement with its own forces * * * shall violate the wage provisions of sections
R.C.
"Every public authority authorized to contract for or construct with its own forces a public improvement, before advertising for bids or undertaking such construction with its own forces, shall have the bureau of employment services determine the prevailing rates of wages of mechanics and laborers * * * in the locality where the work is to be performed."
R.C.
"The prevailing rate of wages to be paid for a legal day's work * * * to laborers, workmen, or mechanics upon public works shall not be less * * * than the prevailing rate of wages then payable in the same trade or occupation in the locality where such public work is being performed, under collective bargaining agreements or understandings, between employers and bona fide organizations of *194 labor in force at the date the contract for the public work, relating to the trade or occupation, was made * * *."
In enacting the prevailing-wage law, the legislature intended to provide a "comprehensive. uniform framework for, inter alia,
worker rights and remedies vis-a-vis private contractors, subcontractors and materialmen engaged in the construction of public improvements." Ohio Asphalt Paving, Inc. v. OhioDepartment of Indus. relations (1992),
An inmate performing prison labor is not an employee of the governmental agent in charge of the jail. Republic-Franklin Ins.Co. v. Amherst (1990),
The prevailing-wage law applies to construction undertaken by a public authority "with its own forces." R.C.
R.C.
In dealing with work-release programs, which provide for the employment of prisoners outside the jail, the legislature has specifically provided that "[a]ny prisoner participating in a work-release program shall be paid remuneration, subject to garnishment, and have hours and other conditions of work that are substantially equal to those prevailing for similar work in the locality." R.C.
We conclude that the Ohio prevailing-wage law does not apply to inmates performing voluntary labor on jail premises for good-time credit pursuant to the work-detail program. The primary purpose of the prevailing-wage law, to protect worker lights and the integrity of the collective-bargaining process by preventing the undercutting of employee wages, is not compromised by our holding, because the inmates are not employees and they receive no wages. The fourth assignment of error is overruled.
For the reasons set forth above under the first, third, and fourth assignments of error, the second assignment of error, which alleges that the trial court erred in denying the motion for a permanent injunction, is overruled.
The judgment of the trial court is affirmed.
Judgment affirmed.
SUNDERMANN J., Concurs.
GORMAN, J Concurs Separately. *196
Concurrence Opinion
I concur with the majority's holding that the sheriff has the discretion to use prisoner labor through a work-detail program to paint the interior walls, floors, and trim of the pods in the Justice Center without the necessity of complying with the Ohio prevailing-wage law, R.C.
Painting the Justice Center is not "maintenance," but is, rather, "construction" as that term is defined in the prevailing-wage statute. R.C.
In Wannemacher, the court considered the issue of whether a sole proprietor who personally performed physical work as a laborer, worker, or mechanic in the construction of a public improvement was himself subject to the prevailing-wage law. In holding that he was not, the court focused exclusively on whether he was an "employee" as contemplated by the statute. In making this determination, the court relied upon the definition of an "employee" in Black's Law Dictionary (5 Ed. 1979) as "one who works for an employer; a person working for salary or wages."Wannemacher;
Although the court in Wannemacher expressly limited its holding to an employer who is a sole proprietor, the analysis provided by the court is, in my opinion, controlling here. Because, as the majority amply demonstrates, prisoners in a work-detail program do not work for a salary or wages and are not considered the sheriff's employees, they are not subject to the prevailing-wage law. To hold otherwise would depart from the analysis given to us by the Ohio Supreme Court in Wannemacher. As with other judicially created exceptions, disparate application tends to dilute broad policy considerations. This case is rendered even more difficult because two strong public interests compete: the need to protect the integrity of the collective-bargaining process by preventing the undercutting of employee wages in the private construction sector, and the need for jail space and the laudable goal of reducing the expense and danger of an overcrowded system through the early release of prisoners who have earned credit against their sentences by performing institutional work. *197
I write separately also to express my concern for an issue that was not addressed. The Public Employees Collective Bargaining Act, R.C.
This issue was not raised in the trial court or here. Furthermore, the record does not indicate whether Justice Center employees are members of a bargaining unit, and, if they are, whether the work here was of a kind arguably covered by the collective-bargaining agreement. Therefore the issue is not presently before us. I raise the issue, however, because of its significant importance and otherwise concur in the majority's well-reasoned analysis.