Opinion
No. 83-800
Decided May 23, 1984.
Attorneys at law — Counties — Prosecuting attorneys not prohibited from maintaining private law practice, when.
APPEAL from the Court of Appeals for Clark County.
On April 30, 1980, John K. Waite, relator-appellant herein, brought a taxpayer's action pursuant to R.C. 309.13 in the Court of Common Pleas of Clark County. The complaint named as "defendants" (hereinafter "respondents") James A. Berry, Clark County Prosecutor; Panayotis F. Pappas, the administrative assistant prosecuting attorney; the law partnership of Berry Pappas; and Sonja Cyphers, an administrative secretary in the Clark County Prosecutor's office. The gravamen of the complaint alleged that respondents had, and were diverting, county owned goods and services to private uses in furtherance of the private law practice of Berry Pappas. The suit prayed for injunctive relief, as well as compensatory and punitive damages.
Because of the nature of this action, all of the common pleas court judges of Clark County removed themselves from the case. Judge Robert D. Nichols of the Court of Common Pleas of Madison County was then assigned to hear the case.
The respondents basically denied the allegations set forth in the complaint, and raised several affirmative defenses, including setoff. Upon agreement of all parties involved, the trial was bifurcated between issues of liability and damages.
After a lengthy bench trial, the court granted judgment in favor of the respondents on the issue of liability, thus eliminating the need for a trial on damages. The trial court found, inter alia, that it is customary in smaller populated counties in Ohio to allow the county prosecutor to maintain a private practice of law in addition to his or her prosecutorial duties. Noting that there is no prohibition in the Ohio Revised Code governing such an operation, the trial judge reasoned that smaller populated Ohio counties allow their prosecuting attorneys to maintain a private law practice since R.C. 325.11 fixes the amount of compensation a county prosecutor may receive based on the population of the particular county in question. The scale or rate of compensation set forth in R.C. 325.11 authorizes the larger populated counties to set a higher rate of compensation for their prosecuting attorneys than do the smaller populated counties.
After reviewing the evidence and testimony, the trial court held that relator had failed to meet his burden of proof in establishing any liability of respondents by a preponderance of the evidence, and concluded that nothing illegal had been done which merited redress by the court. It was also noted in the trial court opinion that the county had probably "benefited" since the prosecutor's office was supplied with, and had used, a number of goods paid for out of the funds of the private law firm.
Upon appeal, the court of appeals affirmed in a split decision. The appellate court echoed the trial court's finding that Ohio has never restricted the right of attorneys to engage in a general practice of law while representing one of its subdivisions as a prosecuting attorney. In addition, the court of appeals stated that pursuant to R.C. 309.06, the General Assembly has given prosecuting attorneys the discretionary authority to determine the hours and duties of personnel within their allotted budgets in the performance of duties for the county. The appellate court upheld the trial court's finding that there was no usurpation of county funds or services for the use of the private law firm, and stated that the work for the county was never put aside in order to further the business of the law partnership.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Allen M. Lehmkuhl Co., L.P.A., and Mr. Allen M. Lehmkuhl, for appellant.
Messrs. Martin, Browne, Hull Harper and Mr. Robin R. Freeman, for appellees.
Mr. J. Walter Dragelevich, prosecuting attorney, Mr. Chris R. Van Schaik and Ms. Barbara P. Gorman, urging affirmance for amicus curiae, Ohio Prosecuting Attorneys Assn.
As both lower courts and amicus curiae point out the practice as followed in the Clark County Prosecutor's office is not proscribed by Ohio law, and is customary in the smaller populated counties of Ohio. The arrangement of allowing county prosecutors in smaller populated counties to engage in a private practice of law can be beneficial to subdivisions such as Clark County, in that it ensures that the county is able to attract competent and experienced attorneys to the office of prosecuting attorney.
Appellant lodges numerous instances of misfeasance on the part of defendants in using public goods and services for private gain. However, both lower courts held that appellant failed to satisfy his burden of proof beyond his bare allegations. We decline to exposite the litany of incidents raised by appellant, because this court will not substitute its judgment for the trier-of-fact absent a manifest and clear abuse of discretion. Given this set of circumstances, the real issue involved in the case sub judice is whether the trial court's judgment was against the manifest weight of the evidence. The court of appeals answered this question in the negative, and we concur with that conclusion.
As this court held in C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279 [8 O.O.3d 261]:
"Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence."
See, also, In re Sekulich (1981), 65 Ohio St.2d 13, 16 [19 O.O.3d 192]; Frankenmuth Mut. Ins. Co. v. Selz (1983), 6 Ohio St.3d 169, 172; State, ex rel. Shady Acres Nursing Home, Inc., v. Rhodes (1983), 7 Ohio St.3d 7, 8-9; Kinney v. Mathias (1984), 10 Ohio St.3d 72, 73; Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80; Cohen v. Lamko, Inc. (1984), 10 Ohio St.3d 167.
A careful review of the record in the instant case reveals that there is competent and credible evidence supporting the ruling of the trial court, and we see no compelling reason for reversing this decision.
The testimony proffered at trial indicated that although there was a mixing of work duties between the business of the prosecutor's office and the private law practice, priority was uniformly given to the business of the prosecutor's office. The evidence also revealed that much of the office furniture, supplies and improvements made to the prosecutor's office were paid out of the law partnership's funds without reimbursement from the county. The evidence and testimony elicited at trial clearly discloses, as the trial court held, that the appellees have not violated any criminal statute either directly or indirectly.
Accordingly, we affirm the judgment of the court of appeals.
Judgment affirmed.
CELEBREZZE, C.J., KOEHLER, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.
KOEHLER, J., of the Twelfth Appellate District, sitting for W. BROWN, J.
This case unquestionably falls under the dictates of the "manifest weight of evidence" standard in our resolution of the factual concerns before us. As a consequence we will not reweigh the validity of evidence presented.
I concur, however, to emphasize the importance of recognizing that an aura of impropriety clearly attaches to the commingling of public and private funds and facilities. In large measure the difficulties leading to the litigation herein were occasioned by appellees' extremely sloppy record keeping. If public prosecutors are to be allowed to form a symbiotic relationship between public and private practices, a concomitant affirmative obligation arises to diligently maintain the proper records for both practices.
The appellees here were fortunate to be able to convince the finder of fact. The potential for abuse is, however, too substantial to allow lesser standards for dual practice public prosecutors than we do for purely private practitioners. Public prosecutors should not take our decision today as a license to act with any lesser zeal in their primary obligations to the public or to their private practice clientele. The diligent maintenance of proper records is necessary in this regard to uphold the trust of the public in our judicial system.