State ex rel. Ohio Inst. For Fair Contracting, Inc. v. Porter

[Cite as State ex rel. Ohio Inst. For Fair Contracting, Inc. v. Porter, 2014-Ohio-2194.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex rel. :

Ohio Institute For Fair Contracting, Inc.,

:

Relator,

:

v. No. 13AP-776

:

Andre T. Porter, Director of the Ohio (REGULAR CALENDAR)

Department of Commerce, :

Respondent. :

D E C I S I O N

Rendered on May 22, 2014

D' Angelo & Hughes Co., L.P.A., and Joseph M. D' Angelo,

for relator.

Michael DeWine, Attorney General, and Aaron W. Johnston,

for respondent.

IN MANDAMUS

ON OBJECTIONS TO THE MAGISTRATE'S DECISION

O'GRADY, J.

{¶ 1} In this original action, relator, the Ohio Institute For Fair Contracting, Inc.,

requests a writ of mandamus ordering respondent, Andre T. Porter, Director of the Ohio

Department of Commerce, to investigate, pursuant to R.C. 4115.13, the alleged violations

of the prevailing wage law as set forth by relator in a parcel of documents mailed to the

director's predecessor on or about October 2, 2012.

{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of

Appeals, this matter was referred to a magistrate who issued a decision, appended hereto,

including findings of fact and conclusions of law. The magistrate concluded relator could

No. 13AP-776 2

not show a clear legal right to have respondent investigate its allegations or that

respondent had a clear legal duty to investigate its allegations. Accordingly, the

magistrate recommended this court grant respondent's motion to dismiss and deny

relator's motion for judgment on the pleadings.

{¶ 3} Relator presents the following objections to the magistrate's conclusions of

law:

1. The Magistrate's [sic] erred in his conclusion of law that

there is no mandatory directive for Director of Commerce

investigation in R.C. 4115 et seq. when he

a. neglected to analyze R.C. 4115.10(E); and

b. found the that the [sic] language of "shall investigate" in

R.C. 4115 et seq. is contingent upon only two instances: the

Director's discretion or an employee/interested party

complaint;

2. The Magistrate's [sic] erred in his conclusion of law as to

the specific basis of OIFC's standing to petition for a Writ of

Mandamus.

{¶ 4} To be entitled to a writ of mandamus, relator must demonstrate a clear legal

right to the requested relief, a corresponding clear legal duty on the part of the respondent

to provide the requested relief, and the lack of an adequate remedy in the ordinary course

of law. State ex rel. Ervin v. Barker, 136 Ohio St.3d 160, 2013-Ohio-3171, ¶ 9.

{¶ 5} In its first objection, relator contends the magistrate erred in his

interpretation of R.C. 4115.13(A), which provides:

(A) Upon the director's own motion or within five days of the

filing of a properly completed complaint under section

4115.10 or 4115.16 of the Revised Code, the director of

commerce, or a representative designated by the director,

shall investigate any alleged violation of sections 4115.03 to

4115.16 of the Revised Code.

(Emphasis added.) Under R.C. 4115.10(B), employees on public improvements who are

paid less than the prevailing rate of wages applicable thereto may file a complaint which

must include documented evidence to demonstrate the employee was underpaid in

violation of R.C. Chapter 4115. Under R.C. 4115.16(A), an "interested party" may file a

complaint alleging a specific violation of R.C. 4115.03 to 4115.16 by a specific contractor or

No. 13AP-776 3

subcontractor. Such a complaint must include sufficient evidence to justify the complaint.

R.C. 4115.03(F) defines who an interested party is.

{¶ 6} The magistrate interpreted R.C. 4115.13(A) to mean the director only had a

duty to commence an investigation if an employee or interested party properly filed a

complaint or if the director, in his discretion, decided to initiate an investigation on his

own motion. Relator is not an employee or interested party that properly filed a complaint

under R.C. 4115.10 or 4115.16. However, relator contends the director must initiate an

investigation on his "own motion" in certain circumstances. Specifically, relator

complains the magistrate ignored R.C. 4115.10(E), which provides: "The director shall

enforce sections 4115.03 to 4115.16 of the Revised Code." Relator contends based on this

provision, when someone other than an employee or interested party presents the

director with documented evidence of a violation of R.C. 4115.03 to 4115.16, the director

must enforce those laws by initiating an investigation on his own motion under R.C.

4115.13(A). Relator claims it provided the director with such evidence.

{¶ 7} However, as the magistrate stated:

In determining legislative intent, this court must first look to

the plain language of R.C. 4115.13(A). See State ex rel.

Burrows v. Indus. Comm., 78 Ohio St.3d 78, 81 (1997). If the

meaning of the statute is unambiguous and definite, it must

be applied as written and no further interpretation is

necessary. Id. Unambiguous statutes are to be applied

according to the plain meaning of the words used. Id. Courts

are not free to delete or insert other words. Id.

(Attached Magistrate's Decision, at ¶ 45.)

{¶ 8} The magistrate correctly observed R.C. 4115.13(A) unambiguously gives the

director power to launch an investigation upon the director's "own motion." This

language implies the director has discretion to decide when to make a motion. Once the

director chooses to make a motion, then the director "shall investigate" the alleged

violations. If the legislature intended to give the director no discretion in investigating

allegations supported by evidence, regardless of the source, there would be no reason for

the legislature to distinguish between investigations triggered by the director's "own

motion" and those triggered by complaints of employees and interested parties under R.C.

4115.10 and 4115.16.

No. 13AP-776 4

{¶ 9} Relator is correct that the magistrate did not specifically address the

relationship between R.C. 4115.10(E) and R.C. 4115.13(A). However, such an analysis was

unnecessary because R.C. 4115.13(A) is unambiguous, and R.C. 4115.10(E) does not alter

it as relator suggests. The director's obligation to enforce the prevailing wage laws, which

include R.C. 4115.13(A), does not somehow remove from his discretion the decision of

when to make his "own motion" under R.C. 4115.13(A). Therefore, we overrule relator's

first objection.

{¶ 10} In its second objection, relator contends the magistrate found it had

standing to bring this mandamus action but erred in failing to state the basis for standing,

i.e., whether relator had beneficial interest standing, injury in fact standing, or both.

Relator misreads the magistrate's decision. After summarizing the parties' respective

arguments about standing, the magistrate found it unnecessary to determine whether

relator, in fact, had standing. As the magistrate explained, even if relator had standing,

relator was not entitled to a writ of mandamus because it could not demonstrate a clear

legal right to the requested relief or a corresponding clear legal duty on the part of the

respondent to provide the requested relief. The magistrate was correct there was no

reason to address the issue of standing under these circumstances. Therefore, we overrule

relator's second objection.

{¶ 11} After an examination of the magistrate's decision, an independent review of

the record, pursuant to Civ.R. 53, and due consideration of relator's objections, we

overrule the objections and adopt the magistrate's findings of fact and conclusions of law.

We deny relator's motion for judgment on the pleadings, grant respondent's motion to

dismiss, and dismiss relator's complaint for a writ of mandamus.

Objections overruled;

motion for judgment on the pleadings denied;

motion to dismiss granted; complaint dismissed.

TYACK and DORRIAN, JJ., concur.

No. 13AP-776 5

APPENDIX

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex rel. :

Ohio Institute For Fair Contracting, Inc., No. 13AP-776

:

Relator, (REGULAR CALENDAR)

:

v.

:

Andre T. Porter,

Director of the Ohio :

Department of Commerce,

:

Respondent.

:

MAGISTRATE'S DECISION

Rendered on January 29, 2014

D' Angelo & Hughes Co., L.P.A., and Joseph M. D' Angelo,

for relator.

Michael DeWine, Attorney General, and Aaron W. Johnston,

for respondent.

IN MANDAMUS

ON RESPONDENT'S MOTION TO DISMISS

ON RELATOR'S MOTION FOR JUDGMENT ON THE PLEADINGS

{¶ 12} In this original action, relator, Ohio Institute For Fair Contracting, Inc.

("OIFC" or "relator"), requests a writ of mandamus ordering respondent, Andre T. Porter,

Director of the Ohio Department of Commerce ("director"), to investigate, pursuant to

No. 13AP-776 6

R.C. 4115.13, the alleged violations of the prevailing wage law as set forth by relator in a

parcel of documents mailed to the director's predecessor on or about October 2, 2012.

Findings of Fact:

{¶ 13} 1. According to the complaint, relator is "an industry-sponsored nonprofit

corporation that promotes fair competition in public works through monitoring and

enforcement of applicable laws, including Ohio Prevailing Wage Law." (Complaint, ¶ 2.)

{¶ 14} 2. According to paragraph three of the complaint:

The purposes for which OIFC was formed include: (1)

monitoring compliance with Ohio prevailing wage law on

public improvements; (2) educating workers and contractors

on the requirements of Ohio prevailing wage law in order to

promote compliance therewith, and (3) aiding and assisting

in any investigations of alleged violations of Ohio prevailing

wage law. In accordance with these purposes, OIFC has a

special interest in ensuring Ohio prevailing wage law is

enforced.

{¶ 15} 3. Andre T. Porter is currently the director of the Ohio Department of

Commerce. Director Porter's predecessor is David Goodman.

{¶ 16} 4. According to the complaint, the University of Toledo undertook a

renovation project called the "University Medical Center Waterproofing Project ('the

Project') during the last half of 2012." (Complaint, ¶ 5.)

{¶ 17} 5. According to the complaint, the total overall cost of the project was in

excess of $285,000, which exceeds the current threshold for construction under R.C.

4115.03(B)(2).

{¶ 18} 6. According to the complaint, the project is a "public improvement" under

R.C. 4115.03(C) and is subject to Ohio prevailing wage law. (Complaint, ¶ 8.)

{¶ 19} 7. According to the complaint, a construction contractor named Edifice

Restoration Contractors, Inc. ("Edifice") submitted a bid and was awarded a construction

contract for the project.

{¶ 20} 8. According to the complaint, Edifice misclassified its employees

performing bricklayer work as lower paid laborers for the work they performed on the

project, resulting in underpayments in violation of Ohio prevailing wage law.

{¶ 21} 9. According to the complaint, OIFC monitored the project for prevailing

wage compliance and discovered the misclassifications and underpayments by Edifice.

No. 13AP-776 7

{¶ 22} 10. According to the complaint, on October 2, 2012, relator informed

director Goodman of Edifice's prevailing wage violations by means of a parcel of

documents along with a cover letter dated October 2, 2012 from Laurie Haupricht, the

executive director of OIFC. Attached to the complaint as exhibit No. 1, the Haupricht

letter states:

The purpose of this letter is to inform you of violations of

Ohio's Prevailing Wage law that I uncovered on the

University of Toledo Medical College Waterproofing Project

("the Project") in Toledo, Ohio.

Specifically, Edifice Restoration Contractors, Inc. ("ERC") is

misclassifying and underpaying its employees on the Project.

I have attached ERC's certified payroll reports and certain

additional payroll documents that I obtained during my

review of this matter. Further, I have attached a letter sent

from one of ERC's employees, Mike Pelfrey, to the prevailing

wage coordinator on the Project, which details the work

performed on the Project and clearly establishes the same to

be that of a "Bricklayer." But the ERC classified and paid its

employees as Laborer Group 3. I personally met with Mr.

Pelfrey and another ERC employee and confirmed both the

misclassifications and underpayments. ERC's entire crew is

performing bricklayer work, but being classified and paid as

laborers. You will see from the attached records that ERC

made corrections to Mr. Pelfrey's wages after he made an

issue of it, but specifically instructed him not to discuss his

wages with other workers. No other employee's wages have

been corrected.

I am turning this matter over to your agency for investigation

and enforcement. I ask you to let me know the case number

and the name and contact information for investigator

assigned to the matter. I remain ready and willing to assist in

your investigation into this matter in any way that I can.

{¶ 23} 11. According to the complaint, respondent refused to assign an investigator

or take any other action to enforce the alleged violations unless an "interested party" filed

a complaint under R.C. 4115.16(A). In support of the averment, relator attached to its

complaint, as exhibit No. 2, an undated letter to Haupricht from Stephen Clegg, bureau

chief, wage and hour administration of the Ohio Department of Commerce. The Clegg

letter states:

No. 13AP-776 8

While the Bureau of Wage and Hour appreciate the efforts

undertaken by your organization to ensure proper

compliance with the prevailing wage requirements in Ohio,

the Department needs clarification and further

documentation before we can assess any potential violations

on the on the [sic] University of Toledo Medical College

waterproofing project.

It is unclear from your correspondence whether your

organization qualifies as an interested third party pursuant

to Ohio Revised Code Section 4115.03(F).

***

Unfortunately interested party standing is a prerequisite for

this Department to open an active investigation into the

project. If your organization does qualify under this section,

please provide evidence and verification of the interested

party standing of your organization.

In addition, there is a requirement set forth in O.R.C.

4115.16(A) that complaints "[s]hall be in writing on a form

furnished by the director and shall include sufficient

evidence to justify the complaint." If your organization does

qualify as an interested party and would like to formally file

this complaint, please complete the enclosed form and

return it with any and all evidence to justify the complaint.

These additional steps are mandated by the Ohio Revised

Code to establish a formal complaint processes [sic] which

the Department must follow.

{¶ 24} 12. According to the complaint, by letter dated December 4, 2012, relator's

counsel requested reconsideration of the director's decision as contained in the undated

Clegg letter. The December 4, 2012 letter from relator's counsel, attached to the

complaint as Exhibit No. 3, reads:

Please be advised that the undersigned serves as legal

counsel to the Ohio Institute for Fair Contracting ("OIFC").

On October 2, 2012 my client presented you with

correspondence and documentation demonstrating

misclassification and underpayment violations committed by

an employer named Edifice Restoration Contractors, Inc.

("Edifice") on the University of Toledo Medical College

Waterproofing Project ("the Project") in Toledo, Ohio.

No. 13AP-776 9

The certified payroll reports show that Edifice classified all of

its workers as Laborers, Group 3, but the employee

statement, which was corroborated by my client by means of

direct employee interviews, demonstrates that the crew was

performing bricklayer work. One employee raised an issue

about his pay rate. His wages were adjusted, but he was also

instructed not to discuss the matter with anyone else. No

other wage adjustments have been made.

Based on the documentation presented to you, including the

names and phone numbers of the two employees my client

interviewed to corroborate the information obtained, it is

clear Edifice is in violation of R.C. 4115.05, 4115.07,

4115.071(C), and 4115.10. It is also clear that Edifice's entire

crew was paid less than the prevailing wage rate for the work

they performed on the Project.

But OIFC informs me that you declined to take any action to

rectify this situation. You advised my client, "[u]nfortunately

interested party standing is a prerequisite for this

Department to open an active investigation into the project."

Respectfully, we disagree. Your agency is charged with

enforcing Ohio prevailing wage law. This statutory mandate

is unequivocal, unqualified, and unconditional. Your duty to

enforce the law is absolute. Further, while an investigation

may be initiated upon the filing of an employee or interested

party complaint, it is incorrect for you to assert that such a

complaint is prerequisite to an investigation. The statute

specifically empowers commerce to investigate on its own

motion, i.e. without the filing of a complaint under R.C.

4115.10 or 4115.16. We believe the statute so provides

specifically to address the current situation - to redress

violations brought to the agency's attention in the absence of

a complaint.

Accordingly, you not only have the legal ability to act upon

the violations brought to your attention by OIFC, you have

an unqualified, absolute duty to investigate and enforce the

law, including seeking redress for Edifice's violations and

underpayments.

I ask you to please reconsider your position and to inform

me of the case number and investigator you assign to this

matter. If I am not provided this information by Friday,

December 21, 2012 or informed otherwise by that time, I will

No. 13AP-776 10

construe your inaction as a refusal to assign a case number

and investigator. Appropriate legal action will follow.

{¶ 25} 13. According to the complaint, by letter dated December 14, 2012, Clegg

informed relator's counsel:

We received your December 4th letter to Director Goodman

and Bureau Chief Clegg. Respectfully, the Ohio Department

of Commerce disagrees with your interpretation of the

statutory obligations and prohibitions governing this matter.

R.C. 4115.10 describes the "employee" prevailing wage

complaint process while R.C. 4115.16 controls the "interested

party" prevailing wage complaint process. Pursuant to R.C.

4115.13, a valid prevailing wage complaint requires, among

other things, that the complainant to be an "employee" or an

"interested party" filing a "properly completed complaint"

including "sufficient evidence to justify the complaint." The

Director is not required to investigate matters filed absent a

valid complaint.

The problem can easily be resolved by identifying a party

that satisfies the definition of an "employee" or "interested

party" and instruct that party to properly file a complaint,

together with sufficient competent evidence to justify the

complaint, with Commerce.

{¶ 26} 14. According to the complaint, by letter dated July 24, 2013, relator's

counsel repeated relator's request for reconsideration. Attached to the complaint, as

exhibit No. 5, the July 24, 2013 letter states:

I am legal counsel for a nonprofit organization known as the

Ohio Institute For Fair Contracting (OIFC). The OIFC serves

an important role in assisting your agency with prevailing

wage enforcement. It is charged with investigating

contractors on public improvement projects. Any

information suggesting violations of the law that the OIFC

uncovers is turned over to the affected parties for further

action, including the contracting public authority, interested

parties, and the affected employees themselves.

During the Fall of 2012 OIFC uncovered intentional

misclassifications and underpayments by a contractor called

Edifice Restoration Contractors, Inc. on a University of

Toledo project. The information supporting these violations

No. 13AP-776 11

and a letter explaining the same was forwarded to your

predecessor, David Goodman.

Unfortunately, Mr. Goodman's office declined to act on the

information my client supplied, stating that an interested

party complaint must be completed in order for an

investigation to be initiated. I wrote to Mr. Goodman in

response and explained our view that the Director's duty to

enforce prevailing wage violations is absolute and

unqualified, and that the Director may investigate on his own

motion in the absence of an employee or interested party

complaint. This appeal was likewise rebuffed.

I believe Mr. Goodman erred in refusing to proceed as

requested. Should you agree, I ask you to please instruct the

appropriate personnel to assign a case number and an

investigator to this matter, and to inform me of these actions

once they are completed. If I am not provided this

information by Wednesday, August 7, 2013, or informed

otherwise by that time, I will construe your inaction as a

refusal to assign a case number and investigator.

Appropriate legal action will follow.

{¶ 27} 15. According to the complaint, by letter dated August 7, 2013, director

Porter informed relator's counsel:

Thank you for your letter dated July 24, 2013. I appreciate

the information you submitted regarding the Toledo Medical

College Waterproofing prevailing wage project. We have

reviewed the information you provided and checked to see if

any complaints have been filed subsequent to your last letter

dated December 4, 2012.

As of the date of this letter, no employee has filed a properly

completed prevailing wage complaint pursuant to R.C.

4115.10 nor has an interested party filed a properly

completed complaint pursuant to R.C. 4115.16 Additionally,

no new information has been submitted to the Department

since this project was last reviewed, and I will not initiate an

investigation at this time. Accordingly, the Department's

position has not changed.

{¶ 28} 16. On September 10, 2013, relator, Ohio Institute For Fair Contracting,

Inc., filed this mandamus action.

No. 13AP-776 12

{¶ 29} 17. On October 9, 2013, alleging "lack of standing and failure to state a

claim upon which relief can be granted," respondent moved for dismissal of this action.

{¶ 30} 18. On October 28, 2013, relator moved for judgment on the pleadings.

Relator also submitted its brief in opposition to respondent's motion to dismiss.

{¶ 31} 19. On November 14, 2013, respondent filed a "reply" to relator's brief in

opposition to the motion to dismiss. Also, respondent opposed relator's motion for

judgment on the pleadings.

{¶ 32} 20. On November 25, 2013, relator filed its reply brief in support of its

motion for judgment on the pleadings.

Conclusions of Law:

{¶ 33} It is the magistrate's decision that this court grant respondent's October 9,

2013 motion to dismiss. It is further the magistrate's decision that this court deny

relator's October 28, 2013 motion for judgment on the pleadings.

{¶ 34} R.C. 4115.03 through 4115.21 sets forth what is commonly referred to as

Ohio's prevailing wage law.

{¶ 35} R.C. 4115.03 currently provides for several definitions. Thereunder, R.C.

4115.03(C) provides:

"Public improvement" includes all buildings, roads, streets,

alleys, sewers, ditches, sewage disposal plants, water works,

and all other structures or works constructed by a public

authority of the state or any political subdivision thereof or

by any person who, pursuant to a contract with a public

authority, constructs any structure for a public authority of

the state or a political subdivision thereof.

{¶ 36} R.C. 4115.03(F) currently provides:

"Interested party," with respect to a particular contract for

construction of a public improvement, means:

(1) Any person who submits a bid for the purpose of securing

the award of the contract;

(2) Any person acting as a subcontractor of a person

described in division (F)(1) of this section;

(3) Any bona fide organization of labor which has as

members or is authorized to represent employees of a person

No. 13AP-776 13

described in division (F)(1) or (2) of this section and which

exists, in whole or in part, for the purpose of negotiating with

employers concerning the wages, hours, or terms and

conditions of employment of employees;

(4) Any association having as members any of the persons

described in division (F)(1) or (2) of this section.

{¶ 37} R.C. 4115.10(B) currently provides:

Any employee upon any public improvement who is paid less

than the prevailing rate of wages applicable thereto may file

a complaint in writing with the director upon a form

furnished by the director. The complaint shall include

documented evidence to demonstrate that the employee was

paid less than the prevailing wage in violation of this chapter.

Upon receipt of a properly completed written complaint of

any employee paid less than the prevailing rate of wages

applicable, the director shall take an assignment of a claim in

trust for the assigning employee and bring any legal action

necessary to collect the claim.

{¶ 38} R.C. 4115.13(A) currently provides:

Upon the director's own motion or within five days of the

filing of a properly completed complaint under section

4115.10 or 4115.16 of the Revised Code, the director of

commerce, or a representative designated by the director,

shall investigate any alleged violation of sections 4115.03 to

4115.16 of the Revised Code.

{¶ 39} R.C. 4115.16(A) currently provides:

An interested party may file a complaint with the director of

commerce alleging a specific violation of sections 4115.03 to

4115.16 of the Revised Code by a specific contractor or

subcontractor. The complaint shall be in writing on a form

furnished by the director and shall include sufficient

evidence to justify the complaint. The director, upon receipt

of a properly completed complaint, shall investigate

pursuant to section 4115.13 of the Revised Code. The director

shall not investigate any complaint filed under this section

that fails to allege a specific violation or that lacks sufficient

evidence to justify the complaint.

No. 13AP-776 14

Analysis of the Statute

{¶ 40} Under the prevailing wage statute, i.e., sections 4115.03 to 4115.21 of the

Revised Code, an "interested party" as defined by R.C. 4115.03(F) may file a complaint

with the director of commerce. Also, an employee as described at R.C. 4115.10(B) may file

a complaint with the director of commerce. Under the prevailing wage statute, only an

R.C. 4115.03(F) interested party or an R.C. 4115.10(B) may file a complaint with the

director of commerce.

{¶ 41} Within five days of the filing of a properly completed complaint, the director

of commerce shall investigate. R.C. 4115.13(A). Further, R.C. 4115.13(A) provides that

"[u]pon the director's own motion * * * the director of commerce * * * shall investigate

any alleged violation" of the prevailing wage statute.

{¶ 42} Relator has not filed a complaint under the prevailing wage statute.

However, relator contends that the statute's language "[u]pon the director's own motion

* * * the director of commerce * * * shall investigate" required the director to investigate

upon his receipt of the parcel of documents on October 2, 2012 from OIFC executive

director Haupricht. In so contending, relator holds that the director is without discretion

as to the initiation of an investigation when he is asked to do so by anyone who claims a

violation of the prevailing wage statute, even when there is no complaint from an

interested party or an employee. The magistrate disagrees with relator's holding.

{¶ 43} Relator's interpretation of R.C. 4115.13(A), in effect, deletes the phrase

"[u]pon the director's own motion" from the statute. Moreover, the magistrate agrees

with respondent, who succinctly argues:

A plain reading of the text clearly indicates that "shall

investigate" is contingent upon the occurrence of either of

two distinct and disjunctive prerequisites: the Director either

uses his discretion to make a motion or an

employee/statutory interested party properly files a

complaint. Relator goes to some lengths to disconnect the

"shall investigate" term from either of the necessary

preconditions.

(Emphasis sic.) (Respondent's reply, 8-9.)

No. 13AP-776 15

{¶ 44} Relator's interpretation of R.C. 4115.13(A) improperly gives anyone alleging

a violation ownership over the director's discretionary power to conduct an investigation

upon his own motion. As respondent here correctly observes "[t]he statute gives no other

party ownership over the [director's] motion." (Respondent's reply, 10.)

{¶ 45} In determining legislative intent, this court must first look to the plain

language of R.C. 4115.13(A). See State ex rel. Burrows v. Indus. Comm., 78 Ohio St.3d 78,

81 (1997). If the meaning of the statute is unambiguous and definite, it must be applied as

written and no further interpretation is necessary. Id. Unambiguous statutes are to be

applied according to the plain meaning of the words used. Id. Courts are not free to

delete or insert other words. Id.

{¶ 46} Clearly, R.C. 4115.13(A) is unambiguous and definite as to the director's

power to launch an investigation upon his own motion. This court cannot accept relator's

invitation to delete words from the statute or to rewrite the statute to meet relator's

expectations. The statutory command that the director "shall investigate" applies only

when the director so moves or within five days of the filing of a properly completed

complaint.

{¶ 47} In short, R.C. 4115.13(A) does not compel the director to investigate the

October 2, 2012 allegations of OIFC nor does it compel this court to order the director to

do so.

Standing

{¶ 48} In his memorandum in support of his motion to dismiss, respondent argues

that relator does not have standing to bring this mandamus action.

{¶ 49} In State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d

451 (1999), the Supreme Court of Ohio had occasion to discuss standing:

It is well established that before an Ohio court can consider

the merits of a legal claim, the person seeking relief must

establish standing to sue. Ohio Contractors Assn. v. Bicking

(1994), 71 Ohio St.3d 318, 320, 643 N.E.2d 1088, 1089. The

concept of standing embodies general concerns about how

courts should function in a democratic system of

government.

***

No. 13AP-776 16

[I]n the vast majority of cases brought by a private litigant,"

'the question of standing depends upon whether the party

has alleged such a personal stake in the outcome of the

controversy, as to ensure that the dispute sought to be

adjudicated will be presented in an adversary context and in

a form historically viewed as capable of judicial resolution.' "

(Citations and internal quotations omitted.) State ex rel.

Dallman v. Franklin Cty. Court of Common Pleas (1973), 35

Ohio St.2d 176, 178-179, 64 O.O.2d 103, 105, 298 N.E.2d 515,

516, quoting Sierra Club v. Morton (1972), 405 U.S. 727,

732, 92 S.Ct. 1361, 1364, 31 L.Ed.2d 636, 641. In order to

have standing to attack the constitutionality of a legislative

enactment, the private litigant must generally show that he

or she has suffered or is threatened with direct and concrete

injury in a manner or degree different from that suffered by

the public in general, that the law in question has caused the

injury, and that the relief requested will redress the injury.

***

This court has long taken the position that when the issues

sought to be litigated are of great importance and interest to

the public, they may be resolved in a form of action that

involves no rights or obligations peculiar to named parties.

***

We hold, therefore, that where the object of an action in

mandamus and/or prohibition is to procure the enforcement

or protection of a public right, the relator need not show any

legal or special individual interest in the result, it being

sufficient that relator is an Ohio citizen and, as such,

interested in the execution of the laws of this state.

Id. 469-75.

{¶ 50} Citing Ohio Academy, respondent argues:

OIFC cannot demonstrate a direct or concrete injury it has

suffered that is different from any injury suffered by the

general public. Further, the OIFC cannot demonstrate any

beneficial interest in the requested relief, an investigation by

Commerce, which would remedy any harm done to the OIFC.

Without such an interest the OIFC's writ must be denied.

***

No. 13AP-776 17

In this case the OIFC's only interest in this case is in having

its interpretation of the law upheld, and as a result, it lacks

standing to proceed. After all, if the OIFC had a concrete

beneficial interest in the outcome of Commerce's conducting

an investigation, it would have qualified as an interested

party pursuant to R.C. Chapter 4115, and had the right to

demand an investigation following the completion of a

properly completed complaint.

(Respondent's motion to dismiss, 8-10.)

{¶ 51} In its brief in opposition to respondent's motion to dismiss, relator responds

to respondent's standing argument. After setting forth the well-settled three prong

requirement for the issuance of a writ of mandamus, relator responds to respondent's

standing argument:

Respondent attacks OIFC's standing as a basis to undermine

the first and third prongs of the test. But it goes too far,

essentially immunizing R.C. Chapter 4115 from mandamus

claims altogether by insisting to have standing, a relator

must be a statutorily defined "interested party." But if that

were true, the interested party/relator would also always

have an adequate remedy at law by proceeding under R.C.

4115.16. Instead, "[a] person must be beneficially interested

in the case in order to bring a mandamus action." "A person's

status as a taxpayer is generally sufficient to establish a

beneficial interest when the object is to compel performance

of a duty for the benefit of the public." And residents are

normally considered taxpayers.

Thus, alleging residency was sufficient to establish a

beneficial interest to seek mandamus against a planning

commission, without the need to show any direct injury to

the claimant.

Here, in addition to being a corporate resident of this State,

the OIFC was expressly organized to monitor, investigate

and compel compliance with Ohio prevailing wage law.

These are literally the exclusive purposes for which OIFC was

formed. It dedicates all of its time and resources to ensuring

compliance with the law. In this case, those resources were

expended uncovering clear, blatant, and intentional

violations of the law by Edifice, including underpaying an

entire crew of workers on the Project. Without question,

OIFC has a beneficial interest in seeing that its investigative

No. 13AP-776 18

efforts bring about the very result for which it was created -

enforcement of the prevailing wage law. The relief OIFC

seeks directly advances its exclusive purpose, as set forth in

its articles of incorporation. Accordingly, OIFC is entitled to

the relief sought.

(Footnotes omitted.) (Relator's brief in opposition, 7-9.)

{¶ 52} Even if it can be said that relator has persuasively argued that it does not

lack standing to bring this action, relator cannot show a clear legal right to the relief it

requests in this action and, concomitantly, relator cannot show that respondent has a

clear legal duty to initiate an investigation into the allegations that relator submitted to

respondent on or about October 2, 2012. That is to say, even if relator does have a

"beneficial interest in seeing that its investigative efforts bring about the very result for

which it was created-enforcement of the prevailing wage law," it cannot show a clear legal

right to have the director investigate its allegations, and it cannot show that the director

has a clear legal duty to investigate relator's allegations. (Relator's brief in opposition, 8.)

{¶ 53} In short, contrary to what relator suggests here, standing alone cannot

compel a writ of mandamus.

{¶ 54} It may be worth noting that, in at least one case, the Supreme Court of Ohio

seems to suggest that R.C. 4115.03(F)(3) interested party status bestows standing. Sheet

Metal Workers' Internatl. Assoc., Local Union No. 33 v. Mohawk Mechanical, Inc., 86

Ohio St.3d 611, 613 (1999). But, OIFC concededly is not an interested party and thus

cannot claim the type of "standing" that the court discussed in Mohawk. Here, relator

incorrectly suggests that, if it can show it has the standing discussed in Ohio Academy, it

necessarily acquires the statutory rights conferred upon an interested party under R.C.

4115.03 et seq.

{¶ 55} Clearly, relator cannot use Ohio Academy standing to create a legal right

that is not granted by the statute. Moreover, as respondent correctly points out, it is

axiomatic that, in mandamus proceedings, the creation of the legal duty that a relator

seeks to enforce is the distinct function of the legislative branch of government and courts

are not authorized to create the legal duty enforceable in mandamus. State ex rel. Pipoly

v. State Teachers Retirement Sys., 95 Ohio St.3d 327, 2002-Ohio-2219, ¶ 18.

No. 13AP-776 19

{¶ 56} Accordingly, for all the above reasons, it the magistrate's decision that this

court grant respondent's motion to dismiss. It is further the magistrate's decision that

this court deny relator's motion for judgment on the pleadings.

/S/ MAGISTRATE

KENNETH W. MACKE

NOTICE TO THE PARTIES

Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign

as error on appeal the court's adoption of any factual finding

or legal conclusion, whether or not specifically designated as

a finding of fact or conclusion of law under Civ.R.

53(D)(3)(a)(ii), unless the party timely and specifically

objects to that factual finding or legal conclusion as required

by Civ.R. 53(D)(3)(b).