STATE, ex rel. OHIO ATTORNEY GENERAL, Plaintiff-Appellee v. ROBERT BURNS, et al., Defendant-Appellant
Appellate Case No. 28496
Trial Court Case No. 2018-CV-3089
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
July 24, 2020
[Cite as State ex rel. Ohio Atty. Gen. v. Burns, 2020-Ohio-3820.]
TUCKER, P.J.
(Civil Appeal from Common Pleas Court)
TODD R. MARTI, Atty. Reg. No. 0019280 and ASHLEY A. BARBONE, Atty. Reg. No. 0083666, 30 East Broad Street, 16th Floor, Columbus, Ohio 43215 Attorneys for Plaintiff-Appellee
JANET K. COOPER, Atty. Reg. No. 0018823, 312 North Patterson Boulevard, Suite 200, Dayton, Ohio 45402 Attorney for Defendant-Appellant
O P I N I O N
Rendered on the 24th day of July, 2020.
{¶ 1} Defendant-appellant, Robert Burns, appeals from the trial court‘s final order of July 12, 2019, in which the court entered summary judgment in favor of Plaintiff-appellee, the State of Ohio. Raising a single assignment of error, Burns argues that the court erred by holding that he was liable under
{¶ 2} We find that the trial court erred in finding Burns liable because Burns neither received the money nor had control over it. Therefore, the court‘s final order of July 12, 2019, is reversed, and this case is remanded to the court for entry of judgment in Burns‘s favor.
I. Facts and Procedural History
{¶ 3} In an undated contract presumably executed on or before August 1, 2009 (the “Contract“), New City engaged Burns to be its chief executive officer, with the title “Director,” for the period running from August 1, 2009, until June 30, 2010. Affidavit of Robert Burns ¶ 2 and Ex. A, Nov. 17, 2018.1 The Contract specified that
{¶ 4} Burns also “had the authority to approve budget expenditures on behalf of New City through the Ohio Department of Education‘s electronic accounting system,” authority that he shared with New City‘s chief fiscal officer, Carl Shye. Id. at ¶ 6; Complaint ¶ 8 and 21-22, July 3, 2018; Appellee‘s Brief 13. Once a budget expenditure was approved, state and federal grants would be deposited into New City‘s bank accounts; New City received $432,989.57 of state and federal funding during the 2009-2010 school year. Burns Affidavit ¶ 6; Affidavit of Brian Jones ¶ 5, Jan. 9, 2019.2 On May 31, 2012, the Ohio State Auditor completed an audit of New City for the 2009-2010 school year, revealing that more than $50,000 had been misappropriated. See Complaint ¶ 15-16, 23 and Ex. 1; Affidavit of Michelle L. Lett ¶ 6, Jan. 10, 2019.3
{¶ 5} The State initiated the instant action by filing a complaint on July 3, 2018, against Burns and three other defendants, including New City‘s chief fiscal officer. Complaint ¶ 5-8. In its complaint, the State alleged that Burns and his co-defendants, being public officials, were jointly and severally liable under
II. Analysis
{¶ 6} For his sole assignment of error, Burns contends that:
THE TRIAL COURT ERRED IN DENYING BURNS’ MOTION FOR SUMMARY JUDGMENT AND GRANTING THE MOTION FOR SUMMARY JUDGMENT OF THE STATE, IMPOSING [sic] STRICT LIABILITY ON BURNS BY FINDING HIS CONDUCT WITHIN THE MEANING OF
R.C. 9.39 .
{¶ 7} Burns argues that the trial court erred by finding that he “clearly * * * exer[cised]” control “over [the] public funds” allocated to New City because his “only responsibility [for New City‘s] fiscal affairs * * * was to approve [its] budget expenditures * * * through the Ohio Department of Education‘s electronic accounting system,” which “trigger[ed] [the] release * * * of state and federal grant[s] * * * to New City[‘s] bank accounts.” Appellant‘s Brief 7. Positing that liability under
{¶ 8} Under
{¶ 9} Initially, the movant bears the burden of establishing the absence of any genuine dispute of material fact, relying only on evidence of the kinds listed in
{¶ 10} Here, the trial court held Burns liable pursuant to
{¶ 11} The application of
{¶ 12} The word “collect,” however, may also be defined as “to claim as due and receive payment for.” Webster‘s New Collegiate Dictionary 225 (10th Ed.1993). Thus, for purposes of
{¶ 13} A court‘s goal when analyzing a statute is to discern and apply “legislative intent [as] manifested in the words of the statute.” Proctor v. Kardassilaris, 115 Ohio St.3d 71, 2007-Ohio-4838, 873 N.E.2d 872, ¶ 12. As such, if the statutory language is “plain and unambiguous[,] [the statute] must be applied as written without further interpretation.” Id. But if the statute is ambiguous, then a court must determine the legislature‘s intent. Cline v. Ohio Bur. of Motor Vehicles, 61 Ohio St.3d 93, 96, 573 N.E.2d 77 (1991). A statute “is ambiguous ‘if a reasonable person can find different meanings in the [statutory language] and if good arguments can be made for either of two contrary positions.’ ” Sunset Estate Properties, L.L.C. v. Lodi, 9th Dist. Medina No. 12CA23, 2013-Ohio-4973, ¶ 20, quoting 4522 Kenny Rd., L.L.C. v. Columbus Bd. of Zoning Adjustment, 152 Ohio App.3d 526, 2003-Ohio-1891, 789 N.E.2d 246, ¶ 13 (10th Dist.); see also Turner v. Hooks, 152 Ohio St.3d 559, 2018-Ohio-556, 99 N.E.3d 354, ¶ 12, citing Sunset Estate Properties at ¶ 20.
{¶ 14} The principle “[t]hat public officials are liable for the public funds they control is firmly entrenched in Ohio law.” Internatl. Preparatory School, 128 Ohio St.3d 50, 2010-Ohio-6136, 941 N.E.2d 1170, ¶ 12. Under ” ‘the American system of government, * * * a public office is a public trust, and * * * public property and public money in the hands of or [subject to] the control of [a public official] constitute a trust fund, for which the official as trustee should be held responsible to the same degree as the trustee of a private trust fund.’ ” Id., quoting Crane Twp. ex rel. Stalter v. Secoy, 103 Ohio St. 258, 259-260, 132 N.E. 851 (1921).
{¶ 15} Before the enactment of
{¶ 16} Turning to the pending case, the funds at issue were not received by Burns and were not subject to his control. Instead, the record reflects that the funds were directed to and controlled by Shye in his capacity as New City‘s chief fiscal officer; that Burns was not Shye‘s supervisor; and that Shye acted independently, without
III. Conclusion
{¶ 17} Burns did not exercise control over the public money allocated to New City during his term as New City‘s chief executive officer, and because he did not exercise control, we hold that he did not receive or collect the money within the meaning of
WELBAUM, P.J., concurs.
HALL, J., dissents:
{¶ 18} I believe that the trial court was correct to grant summary judgment against Burns, the chief executive officer and “director” of the New City Community School, for public funds misappropriated during his tenure. I would affirm the judgment of the trial court and therefore dissent.
{¶ 19} As indicated in the majority decision, Burns had “general supervision and management authority of the school and all the personnel employed by the school” (¶ 3, above). He had authority to approve budget expenditures (¶ 4), and he conceded he had the responsibility for authorizing the deposit of grant money into New City‘s bank accounts (¶ 10). I agree with the trial court‘s conclusion that he took “affirmative steps within his official capacity to come to possess or acquire public funds for use by New City. Mr. Burns clearly exhibited an exertion of control over public funds.” (Final Order at 8.)
{¶ 20}
{¶ 21} Burns “collected” public funds when he approved New City‘s “final expenditure report” and approved multiple grant funding applications on behalf of New City, resulting in the school procuring three separate grants during the 2009-2010 school year (fiscal year 2010). (Appendix to State‘s Motion for Partial Summary Judgment 67, ¶ 4-7.) Therefore, I would affirm the summary judgment decision of the trial court holding Burns liable for the misappropriated funds.
Copies sent to:
Todd R. Marti
Ashley A. Barbone
Carl Shye
William Bell Sr.
Janet K. Cooper
Hon. Mary L. Wiseman