January 17, 2017

The Honorable Dennis Watkins

Trumbull County Prosecuting Attorney

160 High Street N.W., 4th Floor

Warren, Ohio 44481-1092

SYLLABUS: 2017-001

  1. Pursuant to R.C. 167.06(A), a board of county commissioners or a board of township trustees that has entered into an agreement under R.C. 167.01 with other political subdivisions to form a regional council of governments for the demolition of vacant or abandoned buildings and the remediation of other nuisance properties may appropriate moneys to meet expenses incurred by the regional council of governments in hiring and maintaining council employees or in purchasing, leasing, or otherwise providing facilities. A board of county commissioners or board of township trustees that has appropriated moneys to meet these expenses may not deposit the moneys into a central fund or pay the moneys to another member government of the regional council, but shall pay the moneys to the regional council of governments.
  2. A board of county commissioners, in the exercise of its reasonable discretion, may utilize volunteers to perform work related to the demolition of vacant or abandoned buildings and the remediation of other nuisance properties in the county as part of a county renewal project under R.C. 303.26 to R.C. 303.56.
  3. A board of township trustees may utilize volunteers to complete all or a portion of the work required to remove, repair, or secure buildings or other structures in the township pursuant to R.C. 505.86(B) or to abate, control, or remove vegetation, garbage, refuse, and other debris from land in the township pursuant to R.C. 505.87(A).
  1. A person authorized by a board of county commissioners or a board of township trustees to perform work related to the demolition of vacant or abandoned buildings and the remediation of other nuisance properties is an “employee” as defined in R.C. 2744.01(B) so long as he is acting within the scope of his employment for the county or township. Such a person is an “employee” as defined in R.C. 2744.01(B) even if he is not compensated for his work.
  2. C. 341.27(B) authorizes a board of county commissioners and a county sheriff to jointly “establish in writing a prisoner work program pursuant to which prisoners … confined in a county correctional facility under control of the county work outside of the facility in a work detail administered by the facility.” R.C. 341.27(B) does not authorize a board of township trustees to join in the establishment of a prisoner work program.
  3. C. 5147.30(B) authorizes a board of county commissioners to “approve the establishment of a county jail industry program for its county in accordance with [R.C. 5147.30].” R.C. 5147.30 does not authorize a board of township trustees to approve the establishment of a similar program for the township.
  4. A board of county commissioners may enter into an agreement with the legislative authority of a municipal corporation or a board of township trustees of a township under R.C. 307.15 whereby the board of county commissioners agrees and is authorized by the municipal legislative authority or board of township trustees to exercise the powers conferred upon the municipal corporation, township, or their respective legislative authorities, by the provisions in R.C. Chapter 4117.
  5. Pursuant to R.C. 167.06(A), a board of county commissioners or a board of township trustees that enters into an agreement under R.C. 167.01 with other political subdivisions to form a regional council of governments for the demolition of vacant or abandoned buildings and the remediation of other nuisance properties may authorize the regional council of governments to use equipment owned by the county or township.
  6. Pursuant to R.C. 167.06, an officer or employee of a county or township that is a member of a regional council of governments may perform work on behalf of the regional council of governments “as part of [the county’s or township’s] financial support.” (2015 Op. Att’y Gen. No. 2015-004 (syllabus, paragraph 8), followed.)

January 17, 2017

OPINION NO. 2017-001

The Honorable Dennis Watkins

Trumbull County Prosecuting Attorney

160 High Street N.W., 4th Floor

Warren, Ohio 44481-1092

 

Dear Prosecutor Watkins:

You have requested an opinion regarding the authority of a board of county commissioners, boards of township trustees, and legislative authorities of municipal corporations to form a joint enterprise pursuant to R.C. 9.482, R.C. 307.15, or any other statute for the purpose of demolishing vacant or abandoned buildings and remediating other nuisance properties in the county. Your letter asks sixteen questions related to the proposed joint enterprise. For clarity and ease of organization, we divided your questions among three separate opinions.

The first of these opinions, 2016 Op. Att’y Gen. No. 2016-038, addresses questions 1, 2, 3, 8, and 9 in your letter. Among other things, this opinion concludes that “[n]either R.C. 9.482 nor R.C. 307.15 grants a board of county commissioners authority to contract with boards of township trustees and legislative authorities of municipal corporations to form a joint enterprise to demolish vacant and abandoned buildings and remediate other nuisance properties within the county.” 2016 Op. Att’y Gen. No. 2016-038 (syllabus, paragraph 1). Alternatively, the opinion concludes that “a board of county commissioners may form a regional council of governments with boards of township trustees and legislative authorities of municipal corporations within the county” pursuant to R.C. 167.01 “for the purpose of performing services or functions related to the demolition of vacant and abandoned buildings and the remediation of other nuisance properties within the county, so long as those services or functions are authorized by R.C. 167.03(A), (B), or (C) or R.C. 167.08.” 2016 Op. Att’y Gen. No. 2016-038 (syllabus, paragraph 2).

It is with these conclusions in mind that we address your remaining questions. This opinion considers questions 4, 5, 6, 7, 10, 11, 12, and 13 in your letter.[1] We have rephrased and renumbered these questions, in part, as follows:

  1. If a board of county commissioners or a board of township trustees enters into an agreement with other political subdivisions to form a regional council of governments, may the board of county commissioners or board of township trustees make monetary contributions to a central fund or another member subdivision to support a centralized staff or office?
  2. May a board of county commissioners or a board of township trustees use volunteers to perform work related to the demolition of vacant or abandoned buildings and the remediation of other nuisance properties on behalf of the county or township? If so, do the provisions in R.C. Chapter 2744 apply to those laborers in the performance of this work?
  3. May a board of county commissioners or a board of township trustees use county prison inmates to perform work related to the demolition of vacant or abandoned buildings and the remediation of other nuisance properties on behalf of the county or township? If so, do the provisions in R.C. Chapter 2744 apply to those laborers in the performance of this work?
  4. May a board of county commissioners engage in collective bargaining on behalf of a board of township trustees or the legislative authority of a municipal corporation?
  5. If a board of county commissioners or a board of township trustees enters into an agreement with other political subdivisions to form a regional council of governments for the demolition of vacant or abandoned buildings and the remediation of other nuisance properties, may the board of county commissioners or board of township trustees authorize the regional council of governments to use equipment owned by the county or township?
  1. May an officer or employee of a county or township that is a member of a regional council of governments perform work on behalf of the regional council?

Before we address your questions, it is helpful to summarize the statutory framework within which a county, a township, and other political subdivisions may form a regional council of governments.

R.C. 167.01 authorizes the “governing bodies of any two or more counties, municipal corporations, townships, … or other political subdivisions” to enter into an agreement to establish “a regional council consisting of such political subdivisions.” Membership in a

regional council of governments is determined by the agreement establishing the regional council, the by-laws of the council, or as set forth in R.C. 167.02(B). R.C. 167.02(A)-(B); R.C. 167.04(A) (“[t]he regional council of governments shall adopt by-laws”). The by-laws of the regional council of governments shall create “a governing board that may act for the council as provided” therein. R.C. 167.04(A). The by-laws are adopted by a majority vote of the members of the regional council. Id. A regional council of governments may employ staff and purchase or lease necessary materials and facilities. R.C. 167.05.

R.C. 167.03(A) authorizes a regional council of governments, among other things, to study governmental problems in the area that are common to two or more members, R.C. 167.03(A)(1); coordinate action among the members of the regional council, R.C. 167.03(A)(2); and promote cooperative agreements and contracts among the regional council’s members, R.C. 167.03(A)(4). R.C. 167.03(B) provides that a regional council of governments may make planning and programming recommendations, R.C. 167.03(B)(1); “[a]ct as an areawide agency to perform comprehensive planning for the programming, locating, financing, and scheduling of public facility projects within the region and affecting the development of the area and for other proposed land development or uses, which projects or uses have public metropolitan wide or interjurisdictional significance,” R.C. 167.03(B)(2); and coordinate “activities affecting the development of the region or area,” R.C. 167.03(B)(3).

In addition to the powers conferred upon a regional council of governments by R.C. 167.03(A) and (B), a regional council of governments “may, by appropriate action of the governing bodies of the members, perform such other functions and duties as are performed or capable of performance by the members and necessary or desirable for dealing with problems of mutual concern.” R.C. 167.03(C). Pursuant to R.C. 167.08, a regional council of governments also may contract with “[t]he appropriate officials, authorities, boards, or bodies of counties, municipal corporations, townships, … or other political subdivisions” “to perform any function or render any service in behalf of such counties, municipal corporations, townships, … or other political subdivisions, which such counties, municipal corporations, townships, … or other political subdivisions may perform or render.”

A Board of County Commissioners and a Board of Township Trustees May Appropriate Moneys to Meet the Expenses of a Regional Council of Governments of Which the County and Township are Members

The first question asks whether a board of county commissioners or a board of township trustees that has entered into an agreement with other political subdivisions to form a regional council of governments may make monetary contributions to a central fund or another member of the regional council to support a centralized staff or office.

R.C. 167.06(A) provides that “[t]he governing bodies of the member governments may appropriate funds to meet the expenses of the [regional] council.” The member governments of a regional council include the county, municipal corporations, townships, and other political subdivisions that entered into the agreement establishing the regional council of governments. R.C. 167.02(A). The governing bodies of a county and a township are a board of county commissioners and a board of township trustees, respectively. See 1993 Op. Att’y Gen. No. 93018, at 2-100 (recognizing that a board of county commissioners is the governing body of a county); 1978 Op. Att’y Gen. No. 78-057, at 2-140 (“a board of township trustees is the governing body of a township”). Accordingly, R.C. 167.06(A) authorizes a board of county commissioners or a board of township trustees that has entered into an agreement to form a

regional council of governments to “appropriate funds to meet the expenses of the council.”

R.C. 167.06(A) does not explain what it means for the governing body of a member government to “meet the expenses of the council.” When a term or phrase is not defined by statute, it is appropriate to assign the term or phrase its common meaning. See R.C. 1.42 (“[w]ords and phrases shall be read in context and construed according to the rules of grammar and common usage”). Webster’s New World College Dictionary 909 (5th ed. 2014) defines the term “meet” to mean “to pay (a bill, etc.).” Webster’s New World College Dictionary 511 defines “expense” to mean “financial cost; fee; charge.” Therefore, R.C. 167.06(A) authorizes a board of county commissioners or a board of township trustees that has entered into an agreement with other political subdivisions to form a regional council of governments to appropriate moneys to pay the financial costs, fees, and charges of the regional council.

R.C. 167.05 authorizes a regional council of governments to employ staff and “purchase or lease or otherwise provide for such supplies, materials, equipment, and facilities as it deems necessary and appropriate in the manner and under procedures established in the by-laws of the council.” The costs of hiring and maintaining employees and purchasing or leasing facilities are “expenses of the council” as that phrase is used in R.C. 167.06(A). R.C. 167.06(A) authorizes the governing body of a member government to appropriate moneys to pay these expenses. You ask whether the governing body of a member government may pay these moneys to a central fund or another member of the regional council.

Public money is held in trust for the benefit of the public and “may be expended only by clear authority of law and in compliance with applicable statutory provisions.” 2002 Op. Att’y Gen. No. 2002-031, at 2-206. “In the case of doubt as to any expenditure of public funds, the doubt is resolved in favor of the public and against the grant of power to expend the funds.” Id. at 2-207. R.C. 167.06 authorizes the governing body of a member government to meet the expenses of the regional council by contributing moneys directly to the council. R.C. 167.06(A) states that “[t]he members of the council … may give to the council moneys, real property, personal property, or services.” R.C. 167.06(B) states that the regional council of governments “may accept funds, grants, gifts, and services … from political subdivisions … whether participating in the council or not.” “The by-laws of the regional council of governments shall provide for the appointment of a fiscal officer … who shall receive, deposit, invest, and disburse the funds of the council in the manner authorized by the by-laws or action by the council.” R.C. 167.04(B).

A board of county commissioners and a board of township trustees are creatures of statute and are therefore authorized to exercise only those express or implied statutory powers conferred upon them by the General Assembly. 2015 Op. Att’y Gen. No. 2015-034, at 2-334 (“a board of county commissioners, as a creature of statute, has only those powers that are expressly granted by statute or that are necessarily implied therein”); 2010 Op. Att’y Gen. No. 2010-008, at 2-46 (“[b]oards of township trustees are creatures of statute and may exercise only those powers that are specifically conferred by statute or that may be necessarily implied therefrom”). No statute in R.C. Chapter 167 or any other provision in the Revised Code authorizes a governing body of a member government of a regional council to contribute moneys that have been appropriated to meet the expenses of the council to a central fund or other member government.[2] Rather, the provisions in R.C. Chapter 167 direct that moneys appropriated by the governing body of a member government under R.C. 167.06(A) shall be given to and received by the regional council through its fiscal officer. See R.C. 167.04(B); R.C. 167.06(A); R.C. 167.06(B).

Accordingly, we conclude that pursuant to R.C. 167.06(A), a board of county commissioners or a board of township trustees that has entered into an agreement under R.C. 167.01 with other political subdivisions to form a regional council of governments for the demolition of vacant or abandoned buildings and the remediation of other nuisance properties may appropriate moneys to meet the expenses incurred by the regional council in hiring and maintaining council employees or purchasing, leasing, or otherwise providing facilities. A board of county commissioners or a board of township trustees may not deposit the moneys into a central fund or pay the moneys to another member of the regional council, but shall pay the moneys to the regional council of governments.

The Use of Volunteers by a Board of County Commissioners

The second question asks whether a board of county commissioners or a board of township trustees may use volunteers to perform work related to the demolition of vacant or abandoned buildings and the remediation of other nuisance properties on behalf of the county or township. If so, you also ask whether the provisions in R.C. Chapter 2744 (political subdivision tort liability) apply to the volunteers in the performance of their work. We shall begin by addressing whether a board of county commissioners may use volunteers in the course of demolishing vacant or abandoned buildings and remediating other nuisance properties.[3]

A board of county commissioners is a creature of statute and may only exercise those powers expressly granted by statute or necessarily implied thereby. 2015 Op. Att’y Gen. No. 2015-034, at 2-334. A board of county commissioners is empowered to combat blight and nuisances within the county through a variety of statutory schemes, including, but not limited to, adopting and enforcing local residential building regulations, R.C. 307.37-.40, designating a community improvement corporation as an agent of the county “for the reclamation, rehabilitation, and reutilization of vacant, abandoned, tax-foreclosed, or other real property in the county,” R.C. 1724.10(A)(2), and undertaking county renewal projects pursuant to R.C. 303.26.56. 2016 Op. Att’y Gen. No. 2016-038, slip op. at 14-15, n.13. It is beyond the scope of this opinion to determine whether a board of county commissioners may use volunteers for the demolition of vacant or abandoned buildings and the remediation of other nuisance properties under each of these statutory schemes. Accordingly, to answer your question, we will consider whether a board of county commissioners may use volunteers to demolish vacant or abandoned buildings and remediate other nuisance properties as part of a county renewal project under R.C. 303.26-.56.

A “‘[c]ounty renewal project’ may include undertakings and activities of a county” to eliminate and prevent “the development or spread of slums and blight, and may involve slum clearance and redevelopment in” an area that the board of county commissioners has determined to be appropriate for such a project. R.C. 303.26(F); see also R.C. 303.26(G) (“‘[c]ounty renewal area’ means a slum area or a blighted area or a combination thereof which the board of county commissioners designates as appropriate for a county renewal project”). Undertakings and activities completed for a county renewal project “may include … demolition and removal of buildings and improvements.” R.C. 303.26(F).

A board of county commissioners possesses “all the powers … necessary or convenient to carry out [R.C. 303.26 to R.C. 303.56].” R.C. 303.37. A board of county commissioners may “improve, clear, or prepare for” the redevelopment of property, R.C. 303.37(C); accept financial assistance from public or private sources to support the performance of tasks authorized by R.C. 303.26 to R.C. 303.56, R.C. 303.37(E); and “organize, coordinate, and direct the administration of the provisions of [R.C. 303.26 to R.C. 303.56]” so that “remedying county slum and blighted areas and preventing the causes thereof within the county’s unincorporated areas may be most effectively promoted and achieved,” R.C. 303.37(J). A board of county commissioners also may establish a new county office or department “in order to carry out most effectively the purposes and objectives of [R.C. 303.26 to R.C. 303.56].” R.C. 303.37(J).

No provision in R.C. 303.26 to R.C. 303.56 or any other provision in the Revised Code specifies the manner in which a board of county commissioners is to demolish vacant or abandoned buildings and remediate other nuisance properties as part of a county renewal project. When the General Assembly confers authority upon a board of county commissioners “‘to perform a particular function without specific directions as to the manner of performing that function, the [board] may exercise a reasonable discretion in its performance.’” 2012 Op. Att’y Gen. No. 2012-018, at 2-154 (quoting 1994 Op. Att’y Gen. No. 94-066, at 2-324); see also Jewett v. Valley Ry. Co., 34 Ohio St. 601, 608 (1878) (“[w]here authority is given to do a specified thing, but the precise mode of performing it is not prescribed, the presumption is that the legislature intended the party might perform it in a reasonable manner”). Therefore, a board of county commissioners may exercise reasonable discretion in determining how to demolish vacant or abandoned buildings and remediate other nuisance properties as part of a county renewal project. In the exercise of such reasonable discretion, a board of county commissioners may determine that it is appropriate to use volunteers to complete work related to the demolition of vacant or abandoned buildings or the remediation of other nuisance properties as part of a county renewal project.

Accordingly, we conclude that in the exercise of its reasonable discretion, a board of county commissioners may utilize volunteers to perform work related to the demolition of vacant or abandoned buildings and the remediation of other nuisance properties in the county as part of a county renewal project under R.C. 303.26 to R.C. 303.56.

The Use of Volunteers by a Board of Township Trustees

Next, we shall address whether a board of township trustees may use volunteers to demolish vacant or abandoned buildings and remediate other nuisance properties within the township. R.C. 505.86 and R.C. 505.87 authorize a board of township trustees, under certain circumstances, to remove or secure buildings or remove or abate vegetation and other debris, respectively, located on private property in the township. R.C. 505.86(B) addresses the repair or removal of buildings or structures and states, in part, that “[a] board of township trustees … may provide for the removal, repair, or securance of buildings or other structures in the township that have been declared insecure, unsafe, or structurally defective.” (Emphasis added.) R.C. 505.87(A) addresses the removal of vegetation and other debris, stating that “[a] board of township trustees may provide for the abatement, control, or removal of vegetation, garbage, refuse, and other debris from land in the township, if the board determines that the owner’s maintenance of [such debris] constitutes a nuisance.” (Emphasis added.) Both R.C. 505.86(B) and R.C. 505.87(A) use the term “provide” in authorizing a board of township trustees to remove buildings or vegetation and other debris, respectively, but neither statute further specifies the manner in which a board of township trustees shall provide for such removal.

The word “provide” is not defined for purposes of either statute. Thus, we derive the word’s meaning from its common, everyday usage. See R.C. 1.42. In common usage, the word, “provide” means “to furnish the means of support.” Webster’s New World College Dictionary 1171. Accordingly, when R.C. 505.86(B) or R.C. 505.87(A) authorizes a board of township trustees to “provide” for the removal of buildings or vegetation and other debris, each statute authorizes a board of township trustees to do whatever is appropriate to furnish the means of support for the removal. Cf. 2015 Op. Att’y Gen. No. 2015-006, at 2-65 to 2-66 (determining the way in which a board of township trustees shall “provide” a public road under R.C. 517.02). If a board of township trustees determines it to be appropriate, the board may furnish the means of support for the removal of buildings or vegetation and other debris by employing volunteers to complete all or a portion of the work authorized by R.C. 505.86(B) and R.C. 505.87(A).

Accordingly, we conclude that a board of township trustees may utilize volunteers to complete all or a portion of the work required to remove, repair, or secure buildings or other structures in the township pursuant to R.C. 505.86(B) or to abate, control, or remove vegetation, garbage, refuse, and other debris from land pursuant to R.C. 505.87(A).

Application of R.C. Chapter 2744 – Political Subdivision Tort Liability

The next part of the second question asks whether the immunity provisions in R.C. Chapter 2744 apply to volunteers that perform work related to the demolition of vacant or abandoned buildings or the remediation of other nuisance properties on behalf of a county or township. Certain provisions in R.C. Chapter 2744 shield political subdivisions and their employees from civil liability in a broad range of circumstances. See Wilson v. Stark Cnty. Dep’t of Human Servs., 70 Ohio St. 3d 450, 452, 639 N.E.2d 105 (1994). R.C. 2744.02(A)(1), for example, states, in pertinent part, that “a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function.” See also R.C. 2744.01(C) (defining “governmental function”); R.C. 2744.01(G) (defining “proprietary function”). R.C. 2744.03(A)(6) grants an employee of a political subdivision immunity from liability in tort for injury, death, or loss to a person or property caused by an act or omission of the employee performed in connection with a governmental or proprietary function of a political subdivision.[4]

A governmental function includes, among other things, “[a] function that is for the common good of all citizens of the state,” R.C. 2744.01(C)(1)(b), or “[a] function that promotes or preserves the public peace, health, safety, or welfare; that involves activities that are not engaged in or not customarily engaged in by nongovernmental persons; and that is not specified in division (G)(2) of [R.C. 2744.01] as a proprietary function,” R.C. 2744.01(C)(1)(c). The demolition of vacant or abandoned buildings and the remediation of other nuisance properties by a board of county commissioners pursuant to R.C. 303.26-.56 and the removal of buildings or vegetation and other debris by a board of township trustees pursuant to R.C. 505.86 or R.C. 505.87 are functions that are for the common good of all citizens of the state and that promote or preserve the public peace, health, safety, or welfare and are not customarily performed by nongovernmental persons. Furthermore, R.C. 2744.01(C)(2)(q) specifically identifies “[u]rban renewal projects and the elimination of slum conditions” as a “governmental function.” Therefore, the demolition of vacant or abandoned buildings and the remediation of other nuisance properties by a board of county commissioners pursuant to R.C. 303.26-.56 and the removal of buildings or vegetation and other debris by a board of township trustees pursuant to R.C. 505.86 or R.C. 505.87 are “governmental functions” as that term is used in R.C. Chapter 2744. See David v. City of Toledo, App. No. L-89-229, 1990 WL 19408, at **1, 4 (Lucas County Mar. 2, 1990) (cleaning vacant lots and abandoned houses in the city is a governmental function for purposes of R.C. 2744.01(C)).

The application of R.C. 2744.02(A)(1), R.C. 2744.03(A)(6), and other provisions in R.C. Chapter 2744 depends upon whether a volunteer enlisted to perform governmental functions on behalf of a county or a township is an “employee” as that term is used in R.C. Chapter 2744. R.C. 2744.01(B) defines “‘[e]mployee’” to mean “an officer, agent, employee, or servant, whether or not compensated or full-time or part-time, who is authorized to act and is acting within the scope of the officer’s, agent’s, employee’s, or servant’s employment for a political subdivision.” (Emphasis added.) Black’s Law Dictionary 64 (7th ed. 1999) defines “agent” to mean “[o]ne who is authorized to act for … another.” A person authorized by a board of county commissioners or a board of township trustees to perform work related to the demolition of vacant or abandoned buildings and the remediation of other nuisance properties on behalf of the county or township is one who is authorized to act for another. Such a person is therefore an “agent” as that term is used in R.C. 2744.01(B). R.C. 2744.01(B) expressly includes within the definition of “employee” an agent of a political subdivision authorized to act for the political subdivision “whether or not compensated.” Therefore, a person need not be compensated to be an “employee” under the statute.

An agent of a political subdivision, whether or not compensated, is an “employee” under R.C. 2744.01(B) if the agent “is authorized to act and is acting within the scope of the … agent’s … employment for” the political subdivision. Whether a person is authorized to act by a political subdivision and is acting within the scope of the person’s employment is a factual inquiry that cannot be resolved by a formal opinion of the Attorney General. 1995 Op. Att’y Gen. No. 95-039, at 2-223 (“the Attorney General is not authorized to decide questions of fact by means of a formal opinion”). However, we are able to conclude that a person authorized by a board of county commissioners or a board of township trustees to perform work related to the demolition of vacant or abandoned buildings and the remediation of other nuisance properties is an “employee” under R.C. 2744.01(B) so long as that person is acting within the scope of the person’s employment for the county or township. See Lanham v. Franklin Twp., Clermont App. Nos. CA2002-07-052, CA2002-08-068, 2003 WL 2012606, at ¶¶20-22 (determining that a person performing services for a township cemetery without compensation was an “employee” as defined in R.C. 2744.01(B) because he “acted with the assent of the” board of township trustees); Kittner v. Roberts, No. CV01-07-1530, 2002 WL 34113522, (C.P. Butler County May 23, 2002) (“[a] volunteer is considered an ‘employee’ for the purposes of [R.C. Chapter 2744]”). A person may be an “employee” under R.C. 2744.01(B) even if the person is not compensated for his work.

The Authority of a Board of County Commissioners or a Board of Township Trustees to Use Inmate Labor

The third question asks whether a board of county commissioners or a board of township trustees may use labor performed by county prison inmates in the course of demolishing vacant or abandoned buildings and remediating other nuisance properties. If so, the question also asks whether the immunity provisions in R.C. Chapter 2744 apply to such laborers in the performance of their work.

Various statutes in the Revised Code authorize a prison inmate to work inside or outside a correctional facility. See, e.g., R.C. 341.27(B) (authorizing a county sheriff and a board of county commissioners to establish “a prisoner work program pursuant to which prisoners … confined in a county correctional facility under control of the county work outside of the facility in a work detail administered by the facility”); R.C. 341.31 (authorizing a board of county commissioners to construct and supervise work camps “for the purpose of the rehabilitation of persons who have been sentenced to imprisonment for a misdemeanor”); R.C. 5145.15 (authorizing the Ohio Department of Rehabilitation and Correction to, among other things, employ “prisoners in the manufacture of articles that are used by” public entities and private persons); R.C. 5145.16 (the Ohio Department of Rehabilitation and Correction shall create work programs for prisoners in the custody of the Department); R.C. 5147.13 (“[p]ersons confined in any workhouse or jail may be employed in the manufacture of articles used by any department or public institution belonging to or controlled by the political subdivisions supporting or contributing to the support of any such workhouse or jail or to any political subdivision of the state”); R.C. 5147.16 (a board of county commissioners may purchase building material for the construction of roads and make necessary arrangements “to work the convicts of the county”); R.C. 5147.19 (“prisoners sentenced to hard labor under [R.C. 5147.18] shall be under the control of the board of county commissioners, which may enact rules for the successful working of those prisoners according to [R.C. 5147.01 to R.C. 5147.20]”); R.C. 5147.28(A) (authorizing courts to “provide by rule for a work-release program to permit any prisoner in a county … jail or workhouse … to be employed with the prisoner’s consent outside of the jail or workhouse”); R.C. 5147.30(B) (authorizing “[a] board of county commissioners” to “approve the establishment of a county jail industry program for its county”). R.C. 341.27 and R.C. 5147.30 are germane to your inquiry, as these statutes authorize the establishment of programs through which a county prison inmate may work outside a county correctional facility.[5]

R.C. 341.27(B) authorizes a county sheriff and a board of county commissioners to “jointly … establish in writing a prisoner work program pursuant to which prisoners … confined in a county correctional facility under control of the county work outside of the facility in a work detail administered by the facility.” See also R.C. 341.42(A)(3) (“‘[c]ounty correctional facility’ means a county jail, county workhouse, minimum security jail, joint city and county workhouse, municipal-county correctional center, multicounty-municipal correctional center, municipalcounty jail or workhouse, or multicounty-municipal jail or workhouse”). Neither R.C. 341.27 nor any other provision in the Revised Code defines or limits the type of “work” that may be performed by participants in a prisoner work program established under this statute. The county sheriff and board of county commissioners “shall specify rules for the operation of the program.” R.C. 341.27(B). Inmate participation in a work detail created under R.C. 341.27(B) is exclusively voluntary. R.C. 341.27(B)(2).[6]

R.C. 5147.30(B) authorizes a board of county commissioners, by resolution, to “approve the establishment of a county jail industry program for its county.” A county jail industry program shall employ “as many prisoners as possible … in jail manufacturing and service industries and agriculture, in private industry or agriculture that is located within or outside the jail, in public works, in institutional jobs necessary for the proper maintenance and operation of the jail, or in any other appropriate form of labor.” Id. A jail industry board established under R.C. 5147.30(C) adopts rules for the establishment and administration of a county jail industry program. R.C. 5147.30(F). A board of county commissioners may “[e]nter into contracts with private industry … and other organizations or persons, and receive grants to establish test work programs within or outside the institutions under the control of the county,” R.C. 5147.30(G)(1), and may “perform any other functions that are necessary for the county jail industry program,” R.C. 5147.30(G)(4).

R.C. 341.27 and R.C. 5147.30 provide specific frameworks within which a prisoner work program and a county jail industry program, respectively, shall operate. Absent specific information about the type of program or arrangement being contemplated by the Trumbull County Board of Commissioners and the boards of township trustees within Trumbull County, we are unable to determine whether county prison inmates may perform work related to the demolition of vacant or abandoned buildings and the remediation of other nuisance properties under R.C. 341.27 or R.C. 5147.30. We are able to conclude, however, that R.C. 341.27(B) authorizes a board of county commissioners and a county sheriff to jointly “establish in writing a prisoner work program pursuant to which prisoners … confined in a county correctional facility under control of the county work outside of the facility in a work detail administered by the facility.” R.C. 341.27(B) does not authorize a board of township trustees to join in the establishment of a prisoner work program. We also are able to conclude that R.C. 5147.30(B) authorizes a board of county commissioners to “approve the establishment of a county jail industry program for its county in accordance with [R.C. 5147.30].” R.C. 5147.30 does not authorize a board of township trustees to approve the establishment of a similar program for the township.

Given our foregoing conclusions, and without additional information, we will not address the next part of your question that pertains to the application of the provisions in R.C. Chapter 2744.[7]

The Authority of a Board of County Commissioners to Engage in Collective Bargaining on Behalf of another Political Subdivision

The fourth question asks whether a board of county commissioners may engage in collective bargaining on behalf of a board of township trustees or the legislative authority of a municipal corporation. R.C. Chapter 4117 sets forth procedures by which public employees and their public employers may engage in collective bargaining. See 2003 Op. Att’y Gen. No. 2003019, at 2-148 (“[p]rovisions governing collective bargaining by public employees appear in R.C. Chapter 4117. The provisions authorize collective bargaining between public employers … and their employees, subject to certain exceptions”). Collective bargaining refers to the duty of a public employer and its employees, through their respective representatives, “to negotiate in good faith at reasonable times and places with respect to wages, hours, terms, and other conditions of employment.” R.C. 4117.01(G); see also R.C. 4117.05 (governing the designation of an exclusive representative of the employees). As used in R.C. Chapter 4117, a “‘[p]ublic employer’ means … any political subdivision of the state located entirely within the state, including, without limitation,” a county, any municipal corporation with a population of at least five thousand people, and any township with a population of at least five thousand people. R.C. 4117.01(B).

R.C. 4117.03(A)(4) authorizes public employees to “[b]argain collectively with their public employers” and to “enter into collective bargaining agreements” with those employers. Public employees engage in collective bargaining through an exclusive representative. See R.C. 4117.04(B) (“[a] public employer shall bargain collectively with an exclusive representative designated under [R.C. 4117.05] for purposes of [R.C. Chapter 4117]”); see also R.C. 4117.05 (governing the methods by which an employee organization becomes the exclusive representative of a unit of public employees). R.C. 4117.06 sets forth the procedure pursuant to which the State Employment Relations Board shall establish appropriate employee bargaining units.

When the exclusive representative of a unit of public employees is certified by the State Employment Relations Board, a public employer designates an employer representative through which the employer engages in collective bargaining. R.C. 4117.04(B). A municipal corporation and a township designate employer representatives pursuant to R.C. 4117.10(C). R.C. 4117.10(C) provides, in part, that “[t]he chief executive officer, or the chief executive officer’s representative, of each municipal corporation, … and the designated representative of the village or the board of township trustees of each township is responsible for negotiations in the collective bargaining process.” R.C. 4117.10(C). The statute preserves within the legislative body of a municipal corporation or township the authority to “accept or reject a proposed collective bargaining agreement.” Id. You ask whether a board of county commissioners may exercise the powers and duties conferred upon a board of township trustees or the legislative authority of a municipal corporation by the provisions in R.C. Chapter 4117 on behalf of the township or municipal corporation. It is our view that R.C. 307.15 provides a board of county commissioners the authority to enter into such an arrangement.

R.C. 307.15(A)(1) authorizes a board of county commissioners and the legislative authority of certain governmental entities to enter into a contract “whereby the board [of county commissioners] undertakes, and is authorized by the contracting [entity], to exercise any power, perform any function, or render any service, on behalf of the contracting [entity] or its legislative authority, that such [entity] or legislative authority may exercise, perform, or render.” The governmental entities whose legislative authorities are authorized to contract with a board of county commissioners under R.C. 307.15(A)(1) include a municipal corporation and a township. The powers, functions, and services that may be performed by a board of county commissioners on behalf of one of the governmental entities listed in R.C. 307.15 include the power to contract. See, e.g., 1986 Op. Att’y Gen. No. 86-012 (syllabus, paragraph 2) (authorizing a board of trustees of a township free public library to enter into an agreement with a board of county commissioners pursuant to R.C. 307.15 “for the purpose of allowing the commissioners to exercise the contracting powers of the trustees in bidding on a capital improvement to the library”).

Your letter expresses concern that an agreement in which one political subdivision agrees to engage in collective bargaining on behalf of another political subdivision “could get into troubling areas of improper delegation of discretionary authority.” It is a well-established common law principle that a duty conferred upon a governmental entity by statute may be delegated only if the duty “is purely ministerial.” 1979 Op. Att’y Gen. No. 79-067, at 2-223. “[T]he duty is not delegable … if it requires judgment and discretion in its performance,” unless, of course, the governmental entity upon which the duty has been conferred has express or implied authority to delegate it. Id.; see also 2013 Op. Att’y Gen. No. 2013-019, at 2-199 (“[a] board of county commissioners … may not delegate a duty that involves the exercise of judgment or discretion to another entity unless the board has express or implied authority to do so”). R.C. 307.15(A)(1) expressly authorizes the legislative authority of a municipal corporation or a board of township trustees to enter into an agreement with a board of county commissioners whereby the board of county commissioners may “exercise any power, perform any function, or render any service, on behalf of the [municipal corporation or township] or its legislative authority, that such [municipal corporation or township] or legislative authority may exercise, perform, or render.” Therefore, R.C. 307.15 authorizes the legislative authority of a municipal corporation or a board of township trustees to delegate the powers conferred upon it or upon the municipal corporation or township by the provisions in R.C. Chapter 4117.

Accordingly, we conclude that a board of county commissioners may enter into an agreement with the legislative authority of a municipal corporation or a board of township trustees of a township under R.C. 307.15 whereby the board of county commissioners agrees and is authorized by the legislative authority of the municipal corporation or the board of township trustees to exercise the powers conferred upon the municipal corporation, township, or their respective legislative authorities, by the provisions in R.C. Chapter 4117.

The Authority of a Board of County Commissioners or a Board of Township Trustees to Authorize a Regional Council of Governments to Use County or Township Equipment

The fifth question asks whether a board of county commissioners or a board of township trustees that enters into an agreement with other political subdivisions to form a regional council of governments for the demolition of vacant or abandoned buildings and the remediation of other nuisance properties may authorize the regional council of governments to use equipment owned by the county or township.

R.C. 167.06(A) authorizes “[t]he governing bodies of the member governments” to “appropriate funds to meet the expenses of the council.” R.C. 167.06(A) further provides that “[s]ervices of personnel, use of equipment, and office space, and other necessary services may be accepted from members as part of their financial support.” Membership in a regional council of governments “shall be the counties, municipal corporations, townships, … and other political subdivisions entering into the agreement establishing the council or admitted to membership subsequently pursuant to the agreement establishing the council” or the council’s bylaws. R.C. 167.02(A). The governing bodies of a county and a township are a board of county commissioners and a board of township trustees, respectively. 1993 Op. Att’y Gen. No. 93-018, at 2-100; 1978 Op. Att’y Gen. No. 78-057, at 2-140. Accordingly, pursuant to R.C. 167.06(A), a board of county commissioners or a board of township trustees that enters into an agreement with other political subdivisions to form a regional council of governments for the demolition of vacant or abandoned buildings and the remediation of other nuisance properties, may authorize the regional council of governments to use equipment owned by the county or township.

The Authority of an Officer or Employee of a County or Township that is a Member of a Regional Council of Governments to Perform Work on Behalf of the Regional Council

The sixth question asks whether an officer or employee of a county or township that is a member of a regional council of governments may perform work on behalf of the regional council. R.C. 167.06(A) authorizes a regional council of governments to accept “[s]ervices of personnel” from the members of the regional council “as part of [the members’] financial support.” In this instance, the members of the regional council of governments are a county and townships.

The phrase “[s]ervices of personnel” is not defined for purposes of R.C. 167.06(A) or more generally for purposes of R.C. Chapter 167. Therefore, we accord the phrase its common meaning. See R.C. 1.42. Webster’s New World College Dictionary 1328 defines “service” to mean, among other things, “work done or duty performed for another or others.” Webster’s New World College Dictionary 1089 defines “personnel” to mean “persons employed in any work, enterprise, service, establishment, etc.” Accordingly, R.C. 167.06(A) authorizes a regional council of governments to accept from a county or a township that is a member of the council “work done or … performed” by “persons employed in any work, enterprise, service, establishment, etc.” Implicit in the language of R.C. 167.06(A) that authorizes a regional council of governments to accept services of personnel from its members is the power of the members to contribute those services. 2015 Op. Att’y Gen. No. 2015-004, at 2-35 (“R.C. 167.06(A) expressly permits a regional council of governments to accept ‘services of personnel’ from a member, and necessarily implied by that language is the power of a member to contribute those services”).

The authority of a county or township that is a member of a regional council of governments to contribute services of personnel to the regional council under R.C. 167.06(A) includes the authority to contribute to the regional council the services of an officer or employee of the county or township. In 2015 Op. Att’y Gen. No. 2015-004 (syllabus, paragraph 8), we concluded that “[p]ursant to R.C. 167.06, a county auditor may serve as the fiscal officer of a regional council of governments.” In reaching this conclusion, we reasoned that the contribution of “personnel” authorized by R.C. 167.06(A) is sufficiently broad to allow a political subdivision to contribute any officer or employee thereof to serve a regional council of governments of which it is a member. 2015 Op. Att’y Gen. No. 2015-004, at 2-35. “R.C. 167.06 does not specify or limit which agencies or officials of the [member governments] may contribute services of personnel to the regional council of governments.” Id. Therefore, we surmised that the contribution of personnel services may come from the county auditor. Id.

As we recognized in 2015 Op. Att’y Gen. No. 2015-004, at 2-35, “[t]he provisions governing a regional council of governments are designed to permit the members to provide more than the traditional contributions of financial support. In addition to providing money, members may provide funds, services of personnel, equipment, real or personal property, or other necessary services.” Accordingly, in keeping with 2015 Op. Att’y Gen. No. 2015-004, we conclude that pursuant to R.C. 167.06, an officer or employee of a county or township that is a member of a regional council of governments may perform work on behalf of the regional council “as part of [the county’s or township’s] financial support” of the regional council.[8]

Conclusions

Based on the foregoing, it is my opinion, and you are hereby advised that:

  1. Pursuant to R.C. 167.06(A), a board of county commissioners or a board of township trustees that has entered into an agreement under R.C. 167.01 with other political subdivisions to form a regional council of governments for the demolition of vacant or abandoned buildings and the remediation of other nuisance properties may appropriate moneys to meet expenses incurred by the regional council of governments in hiring and maintaining council employees or in purchasing, leasing, or otherwise providing facilities. A board of county commissioners or board of township trustees that has appropriated moneys to meet these expenses may not deposit the moneys into a central fund or pay the moneys to another member government of the regional council, but shall pay the moneys to the regional council of governments
  2. A board of county commissioners, in the exercise of its reasonable discretion, may utilize volunteers to perform work related to the demolition of vacant or abandoned buildings and the remediation of other nuisance properties in the county as part of a county renewal project under R.C. 303.26 to R.C. 303.56.
  3. A board of township trustees may utilize volunteers to complete all or a portion of the work required to remove, repair, or secure buildings or other structures in the township pursuant to R.C. 505.86(B) or to abate, control, or remove vegetation, garbage, refuse, and other debris from land in the township pursuant to R.C. 505.87(A).
  1. A person authorized by a board of county commissioners or a board of township trustees to perform work related to the demolition of vacant or abandoned buildings and the remediation of other nuisance properties is an “employee” as defined in R.C. 2744.01(B) so long as he is acting within the scope of his employment for the county or township. Such a person is an “employee” as defined in R.C. 2744.01(B) even if he is not compensated for his work.
  2. C. 341.27(B) authorizes a board of county commissioners and a county sheriff to jointly “establish in writing a prisoner work program pursuant to which prisoners … confined in a county correctional facility under control of the county work outside of the facility in a work detail administered by the facility.” R.C. 341.27(B) does not authorize a board of township trustees to join in the establishment of a prisoner work program.
  3. C. 5147.30(B) authorizes a board of county commissioners to “approve the establishment of a county jail industry program for its county in accordance with [R.C. 5147.30].” R.C. 5147.30 does not authorize a board of township trustees to approve the establishment of a similar program for the township.
  4. A board of county commissioners may enter into an agreement with the legislative authority of a municipal corporation or a board of township trustees of a township under R.C. 307.15 whereby the board of county commissioners agrees and is authorized by the municipal legislative authority or board of township trustees to exercise the powers conferred upon the municipal corporation, township, or their respective legislative authorities, by the provisions in R.C. Chapter 4117.
  5. Pursuant to R.C. 167.06(A), a board of county commissioners or a board of township trustees that enters into an agreement under R.C. 167.01 with other political subdivisions to form a regional council of governments for the demolition of vacant or abandoned buildings and the remediation of other nuisance properties may authorize the regional council of governments to use equipment owned by the county or township.
  1. Pursuant to R.C. 167.06, an officer or employee of a county or township that is a member of a regional council of governments may perform work on behalf of the regional council of governments “as part of [the county’s or township’s] financial support.” (2015 Op. Att’y Gen. No. 2015-004 (syllabus, paragraph 8), followed.)

Very respectfully yours,

MICHAEL DEWINE

Ohio Attorney General

Footnotes:

[1] The twelfth question in your letter asks whether R.C. 9.482(F) and R.C. Chapter 2744 afford statutory immunity to political subdivisions that share employees, prisoners, and volunteers as part of a joint board or agency to demolish vacant or abandoned buildings and abate nuisances within the county. The thirteenth question in your letter asks whether a county engineer, township fire department, or other public official or body may participate in “such a program” when the public official or body is funded by a tax levy. These questions are rendered academic in light of our conclusion in 2016 Op. Att’y Gen. No. 2016-038 (syllabus, paragraph 1) that neither R.C. 307.15 nor R.C. 9.482 authorizes the political subdivisions in Trumbull County to create a joint enterprise to demolish vacant or abandoned buildings and remediate other nuisance properties. Therefore, we shall not address these questions.

The seventh question in your letter asks whether a board of county commissioners may enter into a contract with the Ohio Department of Rehabilitation and Correction in which the Ohio Department of Rehabilitation and Correction provides state prison inmates to the county to perform work related to the demolition of vacant or abandoned buildings and the remediation of other nuisance properties. The Ohio Department of Rehabilitation and Correction is a statutory client of the Attorney General. Absent a request from the Department for a formal opinion that addresses the subject matter about which you inquire, we shall not address this question.

[2] Provisions in R.C. Chapter 5705 govern a subdivision’s creation of funds. A “‘[s]ubdivision’ means any county; municipal corporation; township;” or other political subdivision listed in R.C. 5705.01(A). R.C. 5705.01(A) does not include within the definition of “subdivision” a regional council of governments. Pursuant to R.C. 5705.09(A) through (H), a subdivision shall establish a general fund, a sinking fund, a bond retirement fund, a trust fund, and several special funds into which moneys received by that subdivision shall be deposited. R.C. 5705.12 authorizes a subdivision to establish special funds “as are desirable” in addition to those specifically named by statute. “The relevant statutes” and circumstances “will ultimately determine where moneys received by [a subdivision] are deposited—to the general fund or another fund in the [subdivision’s] treasury.” 2013 Op. Att’y Gen. No. 2013-017, at 2-169. No provision in R.C. Chapter 5705 authorizes two subdivisions that are members of a regional council of governments to create a joint fund in which the moneys of both subdivisions may be deposited and commingled.

[3] Black’s Law Dictionary 1570 (7th ed. 1999) defines “volunteer” as “a person who, without an employer’s assent and without any justification from legitimate personal interest, helps an employee in the performance of the employer’s business.” (Emphasis added.) Webster’s New World College Dictionary 86 (5th ed. 2014) defines “assent” to mean “consent or agreement; concurrence.” We presume that a person enlisted by a board of county commissioners or a board of township trustees to perform work related to the demolition of vacant or abandoned buildings and the remediation of other nuisance properties, whether with or without compensation, performs that work upon the consent or agreement of the board of county commissioners or board of township trustees. Therefore, as used in this opinion, the term “volunteer” is not used in the sense in which it is defined in Black’s Law Dictionary, but rather means a person who performs work, without compensation, on behalf and with the consent of a board of county commissioners or a board of township trustees. See generally Lanham v. Franklin Twp., Clermont App. Nos. CA2002-07-052, CA2002-08-068, 2003 WL 2012606, at ¶¶20-22 (determining that a person performing services for a township cemetery without compensation was an “employee” as defined in R.C. 2744.01(B) because, among other things, he “acted with the assent of the” board of township trustees).

[4] R.C. 2744.03(A)(6) declares that an employee is immune from liability unless “[t]he employee’s acts or omissions were manifestly outside the scope of the employee’s employment or official responsibilities,” R.C. 2744.03(A)(6)(a); “[t]he employee’s acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner,” R.C. 2744.03(A)(6)(b); or “[c]ivil liability is expressly imposed upon the employee by a section of the Revised Code,” R.C. 2744.03(A)(6)(c).

[5] R.C. 5147.28(A) authorizes courts of common pleas and municipal and county courts to “provide by rule for a work-release program to permit any prisoner in a county or city jail or workhouse … to be employed with the prisoner’s consent outside of the jail or workhouse.” This opinion does not address whether a county inmate may perform work on behalf of a board of county commissioners or a board of township trustees under a work-release program established by the courts under R.C. 5147.28. This opinion considers only those statutes that may authorize a board of county commissioners or a board of township trustees to create a program through which county prison inmates may perform work related to the demolition of vacant or abandoned buildings and the remediation of other nuisance properties on behalf of the county or township.

[6] Only certain prisoners qualify for a work detail established under R.C. 341.27. R.C. 341.27(B)(1) provides that “no prisoner or adult offender confined in the facility under a charge of, or a sentence imposed for, an offense of violence may be assigned to a work detail under the program.” R.C. 341.27(B)(3) provides that “no prisoner or adult offender under supervisory authority of the adult parole authority may be assigned to a work detail under the program.”

[7] We note, however, that R.C. 341.27(C) and (D) address civil liability that may arise from the actions of a prisoner working on a work detail established in accordance with that statute. R.C. 341.27(C)(1) and (2) insulate certain correctional officers and the county with which those officers are employed, respectively, from liability for civil damages that may arise from an injury, death, or loss “caused or suffered by a prisoner … working on the work detail.” A correctional officer or a county qualifies for the immunity granted in R.C. 341.27(C)(1) or (2) so long as the injury, death, or loss is not a result of malice or wanton or reckless misconduct of the officer and the prisoners working on the work detail “have volunteered for the work detail and are imprisoned or reside in [a county correctional facility] other than a felony of the first or second degree.” R.C. 341.27(C). A county correctional officer qualifies for the immunity granted in R.C. 341.27(C)(1) only if the officer informs “each prisoner or adult offender on the work detail of the provisions of [R.C. 341.27]” prior to having the prisoners or adult offenders “work outside the facility on the work detail.” See also R.C. 341.42(A)(1) (defining “‘[c]ounty correctional officer’”).

[8] Absent specific information about the county or township officer or employee that is to provide services to a regional council of governments, we presume, for the purpose of this opinion, that the county or township officer or employee is not specifically prohibited from providing such services by any statute, regulation, resolution, or employment contract. It is beyond the scope of this opinion to conceive of all legal principles and factual circumstances that may prohibit a county or township officer or employee from serving a regional council of governments notwithstanding the general authority granted in R.C. 167.06.