TESTIMONY IN SUPPORT OF HB 88. Lynda Murray, Director of Government and Legal Services. Ohio Library Council

Transcription

1 TESTIMONY IN SUPPORT OF HB 88 Lynda Murray, Director of Government and Legal Services Ohio Library Council Good afternoon, Mr. Chairman, members of the committee. I am Lynda Murray and I represent Ohio s public libraries. A recent opinion of the United States District Court for the Northern District of Ohio called into question the authority of a county prosecutor to represent public libraries. I believe that a review of statutory history shows that the Court s interpretation of R.C (A) in the case in question does not comport with the General Assembly s intent in enacting that provision. I also believe that if the Court had additional explanation and information, the issue may have been resolved differently. To remove any future question regarding a county prosecutor s authority to represent all tax-supported public libraries under R.C (A), we are supporting HB 88. I have provided you with a copy of our legal counsel s memo on this legislation, which goes into far greater legal detail and background on the issue raised in the District Court. This legislation allows, but does not require, county prosecutors to continue to represent public libraries. The Ohio County Prosecutors Association supports this legislation. We would also ask that, if possible, this bill move quickly. There are several county prosecutors that would prefer this legislation to pass before they renew their representation of public libraries. Thank you very much for your time. I would be pleased to answer any questions.

2 Vorys, Sater, Seymour and Pease LLP MEMORANDUM TO: FROM: Ohio Library Council Jonathan D. Iten DATE: RE: Authority of County Prosecuting Attorneys to provide legal advice to public libraries A recent opinion of the United States District Court for the Northern District of Ohio has called into question the authority of a county prosecutor to represent public libraries. See Pietrangelo v. Sandusky Library, No. 3:09-cv-02560, Order dated May 24, 2010 ( Order ). A copy of the referenced opinion as well as copies of the pertinent briefing are attached. I believe that a review of statutory history shows that the Court s interpretation of R.C (A) in Pietrangelo does not comport with the General Assembly s intent in enacting that provision. I also believe that if the Court had additional explanation and information, the issue may have been resolved differently. To remove any future question regarding a county prosecutor s authority to represent all tax-supported public libraries under R.C (A), I recommend that the OLC work to have legislation passed which will make the intent of the General Assembly clear without the need for a seven page memorandum.. In the meantime, I have prepared the following summary of the Pietrangelo case and the additional authorities on this issue. Hopefully, libraries can share this information with their county prosecutors in an effort to provide some comfort to prosecutors so that they may continue to serve as legal advisors to all tax-supported public libraries in their respective counties. A. Pietrangelo v. Sandusky Library, No. 3:09-cv Pietrangelo involved a suit by a patron against the Sandusky Library (a private tax supported association library) and a library employee, among others, arising out of 1 Following its decision on the question of disqualification of counsel, the Court dismissed the case, on June 14, 2010, with prejudice, as a sanction for Plaintiff s contempt of court, his willful disobedience of a court order and his willful failure to cure his contempt.

3 Page 2 the library s response to a complaint made by the patron. The library and its employee were represented by both insurance defense counsel and the Erie County Prosecutor s Office. The Plaintiff moved to disqualify the Erie County Prosecutor s Office as counsel for the library on two grounds: 1) that county prosecutors have no authority under R.C (A) to serve as a legal advisor to libraries other than libraries which constitute county boards ; and 2) Plaintiff intends to call the assistant prosecutor as a witness at trial. Motion to Disqualify at 1. With respect to his first argument, Plaintiff argued that under cannons of statutory construction, the phrase including all tax-supported public libraries contained in R.C (A) which provides that the prosecuting attorney shall be the legal advisor of the board of county commissioners, boards of elections, and all other county officers and boards, including all tax-supported public libraries[,] references the preceding phrase all other county officers and boards[.] Id. at 2-3. Thus, R.C (A) authorizes a county prosecutor to serve as a legal advisor only to libraries which qualify as county boards, and because the Sandusky Library is not such a library, the Erie County Prosecutor s Office had no authority to represent the Sandusky Library in the litigation pending before the Court. Id. at 2-4. Plaintiff also argued that the fact the Sandusky Library received state tax-funds was insufficient to bring the Sandusky Library within R.C (A). In response, the county prosecutor asserted that R.C (A) authorized the county prosecutor to serve as legal advisor to all tax-supported public libraries and that the Sandusky Library was a tax-supported public library. Opp n at 4-5. The Court rejected the county prosecutor s position and disqualified the Erie County Prosecutor s Office from representing the Sandusky Library. Order at 1-2. The Court adopted the Plaintiff s argument that the phrase including all tax-supported public libraries in R.C (A) referenced the preceding phrase all other county officers and boards and thus held (without explicitly stating) that county prosecutors have the authority to represent only libraries which constitute county boards under R.C (A). Id. B. A Short History of Ohio Library Law and the Importance of 1947 Understanding R.C (A) in its current form requires a short history of the laws relating to the organization of public libraries. There are six types of public libraries in Ohio: 1) township free public libraries, originally formed by electors of townships (R.C ), whose taxing and appointing authority is the township board of trustees; 2) county free public libraries, originally formed by a private gift to the board of county commissioners, whose taxing authority is the county commission 2

4 Page 3 and appointing authority is the county court of common pleas (R.C ); 3) school district free public libraries, originally formed by boards of education, whose taxing and appointing authority is the board of education (R.C ); 4) municipal free public libraries, originally formed by municipal corporations, whose taxing and appointing authority is the municipal corporation (R.C ); 5) county district libraries, formed through one of the mechanisms now set forth in R.C through , whose taxing authority is the county and whose appointing authorities are the court of common pleas and the county commission (R.C ) (these five types of libraries are the governmental public libraries ); and 6) association libraries, private nonprofit entities described in R.C formed by private citizens that receive tax support through compliance with R.C Prior to 1947, each of the various types of governmental public libraries, with the exception of county district libraries, were considered part of the entity that organized them. Thus, a school district free public library, for example, was a function or board of a Board of Education, a township free public library was a board of the associated township and a municipal free public library a function or board of its municipal corporation. In 1947, the General Assembly enacted H.B. 125 (122 H 125). This bill recodified and revamped the laws relating to Ohio s public libraries, and established the framework for public libraries that exists today. Among other things, the changes effected through the enactment by H.B. 125 of General Code 7628, 7630 and (now R.C , and ) made each of the governmental public libraries bodies politic and corporate and as such capable of suing and being sued, contracting and being contracted with, acquiring, holding, possessing and disposing of real and personal property, and of exercising such other powers and privileges as are conferred upon them by law. Miller v. Akron Public Library (C.P. 1951), 96 N.E.2d 795, 798. According to the Miller court, this made the governmental public libraries separate and distinct entities or bodies politic and corporate, separate and apart from 3

5 Page 4 the municipality, the county, the school board, etc., and not agents of said bodies politic. Id. 2 This change in library status is critical to the evolution of R.C (A). C. The Court s Interpretation Of R.C (A) In Pietrangelo Renders The Original Enacting Language Meaningless. The Miller decision illustrates the first of two problems with H.B. 125 that needed legislative attention. The second problem that arose tied directly to library legal representation. Prior to 1947, General Code provided that the prosecuting attorney of the county served as the legal representative of the county library district. 3 As part of the general revamp of library laws brought about by H.B. 125, the General Assembly repealed G.C in The Ohio Attorney General considered the question of whether the repeal of G.C affected legal representation of county library districts in 1950 Op. Att y Gen. No In 1950, G.C provided in pertinent part that [t]he prosecuting attorney shall be the legal advisor of the county commissioners and all other county officers and county boards Thus, if a county library district was a county board within the meaning of that statute, G.C would provide for legal representation. The Attorney General concluded that a county library district was not a county board within the meaning of G.C. 2917, basing his decision on a predecessor opinion, 1927 Op. Att y Gen. No. 593, and the wording of H.B. 125, and concluded: All of these considerations, I think, pretty clearly indicate that such county library district is not essentially a subdivision of the county nor a subordinate department of the county. From this it would follow that the general provisions of Section 2 In the Miller case, this meant that the laws in respect of bidding by municipal corporations no longer applied to the Akron Public Library, a municipal public library. Thus, the Akron Public Library was permitted to contract for construction of a permanent improvement without advertising for bids. The result in the Miller case was legislatively overturned by the enactment shortly thereafter of G.C , the predecessor of today s library bidding statute, R.C That statute, found in the portion of the General Code related to County Library Districts, provided in pertinent part: The prosecuting attorney of the county shall be the legal advisor of the county library district, and shall represent the trustees thereof in all cases in court. Note that, in 1931 when the General Assembly felt it necessary to enact G.C G.C provided in pertinent part: The prosecuting attorney shall be the legal advisor of the county commissioners and all other county officers and county boards.. 4

6 Page , General Code, would not be applicable so as to constitute the prosecuting attorney as the legal advisor of the board of trustees of such county library district Op. Att y Gen. No. 1970, at 449. That opinion, similar to the Miller case, engendered a response from the General Assembly. As part of catch-all remedial legislation dealing with libraries, the General Assembly enacted Amended House Bill No. 251 (125 H 251) in Among other things, that bill added the predecessor language to the provision of R.C (A) interpreted by the Court in Pietrangelo. See 125 H 251. Specifically, the General Assembly amended R.C (A) by adding the italicized language: The prosecuting attorney shall be the legal advisor of the board of county commissioners, board of elections, and all other county officers and boards, including all tax supported public libraries except those organized as a part of a city school district or of a municipal corporation, H Thus, under the amended provision, county prosecuting attorneys were once again authorized to serve as legal advisors for libraries. Under the Pietrangelo Court s interpretation of R.C (A), however, this amendment and the phrase except those organized as a part of a city school district or of a municipal corporation have absolutely no purpose. First, the Pietrangelo Court s reading would have interpreted the predecessor wording of R.C (A) (previously G.C. 2917) prior to this amendment as already covering libraries which are county boards. Clearly, the General Assembly deemed it necessary to add something to overturn the 1950 Attorney General decision. Second, the phrase all tax supported public libraries cannot refer only to libraries which are county boards, since the General Assembly deemed it necessary to expressly except out of the amendment two types of libraries those organized as a part of a city school district or of a municipal corporation that are not, under any reading, county boards. Those libraries organized as a part of a city school district clearly describe school district free public libraries established by boards of education of a city school district. Those libraries organized as part of a municipal corporation clearly describe 4 The phrase except those organized as a part of a city school district or of a municipal corporation was removed in 1959 as part of another omnibus library bill, 128 H 140). 5

7 Page 6 municipal free public libraries established by a municipal corporation. These entities are not county boards. By their very nature, these libraries do not answer to nor are they subject to the county in any way. Because school district public libraries and municipal public libraries cannot be county boards, the phrase excepting those libraries organized as a part of a city school district or of a municipal corporation is superfluous as those entities would be excepted anyway under the Pietrangelo Court s reading of R.C (A). The Legislature, however, is presumed to have enacted words because they were meant to have meaning. In re Medure (7th Dist. 2002), 2002 WL , 9 ( [W]hen a new statute uses different phraseology than the former law, it is presumed that a change of meaning was also intended to the extent of the change in the language since it is axiomatic in statutory construction that words are not inserted into an act without some purpose. ) (citing Malone v. Indus. Comm. Of Ohio (1942), 140 Ohio St. 292, 299; Hancock Cty. Bd. of Edn. v. Boehm (1921), 102 Ohio St. 292, syllabus). Thus, in light of the original enacting legislation, the Pietrangelo Court s interpretation appears flawed. The more plausible reading of the statute is that the phrase including was intended to bring all tax supported public libraries within the meaning of the statute and was not intended to apply to only those tax supported public libraries within the county. Alternatively, the General Assembly used the phrase county boards in the broadest possible sense meaning located in the county regardless of whether a particular tax supported public library was part of or subject to the authority of the County Commissioners. Interpreting the statute otherwise renders the 1953 amendment meaningless. The Court s conclusion that the phrase including all tax-supported public libraries in R.C (A) references the preceding phrase all other county officers and boards and thus renders only those libraries which qualify as a county board within the ambience of R.C (A) thus cannot be reconciled with the history of the statute. D. Libraries Are Separate And Distinct Entities From Their Appointing Authorities. As noted above, in 1947, the General Assembly changed the laws governing public libraries and added language to then General Code 7628 (currently Revised Code ) that governmental public libraries are bodies corporate and politic. The Miller case was just the first of a line of authorities that have confirmed the separate and distinct nature of public libraries after the passage of H.B See, Lorton v. Rossford Public Library (1980), 69 Ohio App. 2d 82 (school district public libraries separate and distinct from boards of education for purposes of R.C (B); 1953 Op. Att y Gen. No. 6

8 Page 7 The court issued the Miller decision in 1951, two years before the General Assembly amended R.C (A) and authorized county prosecuting attorneys to serve as legal advisors for libraries. Thus, presumably the General Assembly was on notice that libraries were separate from their appointing or taxing authorities (including that a county free public library and a county district library are separate and distinct entities from the county and thus not county boards). Because public libraries are considered separate and distinct entities pursuant to R.C , no public libraries qualify for representation by a county prosecutor under the Pietrangelo Court s interpretation of R.C (A). All public libraries, including county free public libraries and county district libraries, are separate legal entities and thus none qualify as a county board. For this additional reason, the court s decision in Pietrangelo appears to conflict with General Assembly s intent in amending R.C (A) in 1953 under the Pietrangelo reasoning, the 1953 amendment benefitted no libraries at all. As such, the more plausible interpretation of the statute is that the phrase including was intended to bring all tax supported public libraries within the meaning of R.C (A). E. Summary. County prosecutors have been representing tax supported public libraries in their respective counties for many years. They have been doing so on a sound basis, grounded upon the evolution of public library law. I believe the Pietrangelo Court would agree with this conclusion, if aware of the statutory history and the holdings that libraries are entities separate and distinct from their appointing and taxing authorities. 6/15/ V (county library district a political subdivision for purposes of Motor Vehicle Financial Responsibility Act); 1960 Op. Att'y Gen. No (township library separate from township and county for purposes of records act); 1993 Op. Att y Gen. No (governmental public libraries are political subdivisions of the State for purposes of R.C and R.C ); Op. Ohio Att y Gen. No (in considering applicability of Ohio s parental leave act, [a] free public library is an entity separate from a county, township, municipal corporation, or school district. ). 7