Summary
In Corrigan v. Gaul, 61 Ohio Misc.2d 119, 575 N.E.2d 524 (1990), the county prosecutor sued for an injunction to prohibit the county treasurer from participating in radio advertisements endorsing a bank's certificates of deposit.
Summary of this case from Opinion No. 1998-216Opinion
No. 166765.
Decided March 1, 1990.
John T. Corrigan, prosecuting attorney, and Patrick J. Murphy, for plaintiff.
John J. Curran, for defendant.
The Prosecuting Attorney of Cuyahoga County, John T. Corrigan, seeks a permanent injunction against the Treasurer of Cuyahoga County, Francis E. Gaul, requesting this court to enjoin the treasurer's participation in radio advertisements endorsing TransOhio Savings Bank's "Seven-Day T-bill C.D." as a "good deal." The treasurer's involvement in the advertisements and the content of the advertisements are stipulated and a copy of the advertisement is attached as Exhibit A. The claim of the prosecutor is, in essence, that there is no difference between the actions of the treasurer in this case and situations where the county sheriff would be promoting Smith Wesson hand guns; the county auditor advertising for H R Block; the county prosecutor touting Hyatt Legal Clinics; or the judges adorning their robes similar to a race car driver or skier, or even wearing a headband like Jim McMahon, endorsing various consumer products. The underlying theme of these exaggerated similes is the promotion of private enterprise, and the law does not permit the good name and reputation of one's public office for such a singular, nonprofit purpose. Therefore, the prosecutor alleges that the treasurer's endorsement violates the public trust, is a breach of the treasurer's fiduciary duty, uses a public office for other than a public purpose, and is, therefore, unlawful.
It is well-settled law that, for a plaintiff to prevail on a complaint for injunctive relief, he must not only prove a clear legal right and that the act of which he complains is wrongful, but he also must demonstrate that there is no adequate remedy at law.
R.C. 309.08 sets forth the powers and duties of the prosecuting attorneys throughout this state:
"The prosecuting attorney may inquire into the commission of crimes within the county. The prosecuting attorney shall prosecute, on behalf of the state, all complaints, suits, and controversies in which the state is a party, except for those required to be prosecuted by a special prosecutor pursuant to section 177.03 of the Revised Code or by the attorney general pursuant to section 109.83 of the Revised Code, and such other suits, matters, and controversies as he is required to prosecute within or outside the county, in the probate court, court of common pleas, and court of appeals. In conjunction with the attorney general, the prosecuting attorney shall prosecute cases arising in his county in the supreme court, except for those cases required to be prosecuted by a special prosecutor pursuant to section 177.03 of the Revised Code or by the attorney general pursuant to section 109.83 of the Revised Code.
"In every case of conviction, the prosecuting attorney forthwith shall cause execution to be issued for the fine and costs, or costs only, as the case may be, and he faithfully shall urge the collection until it is effected or found to be impracticable to collect, and forthwith shall pay to the county treasurer all moneys belonging to the state or county which come into his possession.
"The prosecuting attorney or an assistant prosecuting attorney of a county may participate, as a member of the investigatory staff of an organized crime task force established under section 177.02 of the Revised Code that has jurisdiction in that county, in an investigation of organized criminal activity under sections 177.01 to 177.03 of the Revised Code."
R.C. 309.12 provides authority for the prosecuting attorney to act to prevent the misuse and misappropriation of public funds:
"Upon being satisfied that funds of the county, or public moneys in the hands of the county treasurer or belonging to the county, are about to be or have been misapplied, or that any such public moneys have been illegally drawn or withheld from the county treasury, or that a contract, in contravention of law, has been executed or is about to be entered into, or that such a contract was procured by fraud or corruption, or that any property, real or personal, belonging to the county is being illegally used or occupied, or that such property is being used or occupied in violation of contract, or that the terms of a contract made by or on behalf of the county are being or have been violated, or that money is due the county, the prosecuting attorney may, by civil action in the name of the state, apply to a court of competent jurisdiction, to restrain such contemplated misapplication of funds, or the completion of such illegal contract, or to recover, for the use of the county, all public moneys so misapplied or illegally drawn or withheld from the county treasury, or to recover damages, for the benefit of the county, resulting from the execution of such illegal contract, or to recover, for the benefit of the county, such real or personal property so used or occupied, or to recover for the benefit of the county, damages resulting from the nonperformance of the terms of such contract, or to otherwise enforce it, or to recover such money as is due the county."
An analysis of the above statutes indicates there is no specific statutory grant of authority to the county prosecutor to bring this cause of action. Furthermore, a civil action under R.C. 309.12 must be brought in the name of the state (which was not done here); and the prosecutor has failed to show either that public funds are involved or have been misapplied. If the state legislature had intended that the county prosecutor have the authority to bring civil actions like this one, then it could easily have granted this power expressly in R.C. 309.08. The general rule of statutory construction provides that when a statute directs a thing to be done in a specific manner, it may not be done by other means or in a different manner. See Cincinnati v. Roettinger (1922), 105 Ohio St. 145, 137 N.E. 6; Heath v. Licking Cty. Regional Airport Auth. (1967), 16 Ohio Misc. 69, 45 O.O.2d 68, 237 N.E.2d 173; State, ex rel. Stoer, v. Raschig (1943), 141 Ohio St. 477, 26 O.O. 56, 49 N.E.2d 56.
The treasurer further asserts that he was conveying a personal message in the commercial and that he was not acting in his capacity as a public official. Section 11, Article I, Ohio Constitution states in part as follows:
"Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press. * * *"
In light of this argument of constitutionally protected speech, the plaintiff herein cannot demonstrate a clear right to relief.
The prosecutor is to be vigilant, as he has been, in protecting the citizens from those who violate the criminal law by prosecuting those persons to the full extent of the criminal law. The prosecutor does not guide us in our moral values nor does he have the authority to enforce ethical standards other than by the derivative effect that his criminal prosecutions may have upon our individual conduct. In effect, the prosecutor desires that this court prohibit an action which the law, by its silence, permits.
The ethical guide to public official's conduct resides with the people through the ballot box, and the prosecuting attorney, regardless of the honest motives in bringing this action, cannot usurp this authority. Ethical guidelines are usually conveyed through those men and women who speak from pulpits, but the penalty for a violation of these standards emanates from the lonely confines of one's reflective mind. In effect, this action requests the court not only to restrain free speech but also to impose ethical standards on a public official whose conduct is viewed by another public official as a violation of the public trust.
Ethics are simply those rules which individuals think guide everyone else. This case does not reflect what is, or is not, ethical conduct of a public official. There is no claim of a violation of a criminal or a civil statute, and this case falls into that gray twilight calling for equitable relief. Equity was created to permit the courts to deal with fact situations that were not comprehended by legislatures when they were enacting various laws. However, this doctrine has limitations. The comments of John Selden in Table Talk are still viable today:
"Equity is a roguish thing * * *. Equity is according to the conscience of him that is chancellor, and as that is larger or narrower, so is equity. 'Tis all one as if they should make the standard for the measure we call a foot, a chancellor's foot. What an uncertain measure would this be! One chancellor has a long foot, another a short foot, a third an indifferent foot. 'Tis the same thing in the chancellor's conscience."
Viewing the allegations most liberally, the plaintiff still has failed to prove that the treasurer's actions were patently wrongful.
Whether or not the treasurer's involvement with the TransOhio commercials is a breach of ethics is a factual determination to be made by the Ohio Ethics Commission.
Therefore, since the plaintiff, the county prosecutor, has failed to demonstrate a clear legal right to relief or even the authority to bring this action, since he has failed to prove the defendant treasurer's actions were wrongful, and since a remedy at law exists within the statutory framework of R.C. Chapter 102 (the Ohio Ethics Law), plaintiff's claim for a permanent injunction is denied.
Judgment for defendant.