The opinion
James D. Sweeney, Presiding Judge,
dissenting.
While the majority applies the proper standard of review for a motion for summary judgment, I must respectfully dissent from the interpretation placed upon several aspects of the evidence relied upon by the majority and the conclusions derived therefrom.
My first concern involves the use of the affidavit of Board of Commissioners Clerk Marjorie Pettus. The majority states, quite correctly, that Pettus averred that the resolutions at issue were presented to the Board in the “usual manner” and were approved by the commissioners. Next, the majority defines the term “usual manner” by detailing the language of R.C. 305.11. Despite the lack of any explanation of the contested term within the affidavit, the majority interprets Pettus’s use of the term “usual manner” as Pettus having presented the resolutions at the public hearing and having them voted on and signed following that hearing pursuant to R.C. 305.11. The term could just as easily be interpreted as supporting the contention that the text of the resolution was not before the Board at the hearing, a view which is supported by the explicit deposition testimony of Commissioner Boyle, who stated the following:
“Q. If I can just direct your attention to Page 3 though, you did vote for the resolution?
“A. That’s correct. But when we vote on the recommendations that come to us each week at our meetings,
we do not have these resolutions in front of us.
“Q. If I may
ask, what do you vote on?
“A.
We vote on a, basically a title.
“Q. So at the time of voting you did not have the complete document before you?
“A.
We do not have it in front of us when we take votes. Right.”
(Emphasis added.)
Given the consistent testimony of all commissioners that they did not have any recollection of the resolution language, of the reasons for modifying the way in which the sewage rate is determined, or voting for the text of the resolution, it is a fair inference to conclude that the Board’s “usual manner,” which is at odds with the usual manner dictated by the statute, is to vote on titles of resolutions and then prepare the text of the resolution after the vote is taken. Accordingly, I would find that there is no genuine issue of a material fact regarding the first assignment of error.
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Turning my attention to the second assignment of error, I note that there was no demonstration before the trial court through documentary evidence that the resolutions were signed by the commissioners and the Board president as provided by R.C. 305.11.
The record of proceedings provided to the trial court clearly demonstrates that the resolutions at issue do not contain the signature of the Board president, Timothy Hagan, or any other commissioner,
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but do contain the clerk’s signature. In fact, the resolutions do not even contain a space or line upon which the Board president’s signature, or that of the remaining commissioners, is to be placed. “It is axiomatic that when used in a statute, the word ‘shall’ denotes that compliance with the commands of that statute is mandatory unless there appears a clear and unequivocal legislative intent that it receive a construction other than the ordinary usage.”
State ex rel. Botkins v. Laws
(1994), 69 Ohio St.3d 383, 385 , 632 N.E.2d 897, 900 , citing
Ohio Dept. of Liquor Control v. Sons of Italy Lodge 0917
(1992), 65 Ohio St.3d 532, 534 , 605 N.E.2d 368 , 369-370. Considering the pertinent clauses of R.C. 305.11 (“shall” be read by the clerk, “and,” if correct, “approved and signed” by the commissioners; “shall” be certified by the president and the clerk of the Board), it is evident that the statute mandates that the minutes be (1) read by the clerk and, if correct, then (2) signed by the commissioners, then (3) certified by the board president and the clerk of the Board, thereby authenticating the minutes as correct.
The analysis does not end at this point, however. What must be reviewed is whether the absence of the required signatures on the record invalidates the resolution due to the lack of proper recording, or is the resolution effective upon the adopting vote. There are two schools of thought on this question.
Appellants rely solely upon two Attorney General advisory opinions from fifty years ago. See 1945 Ohio Atty.Gen.Ops. No. 208, and 1941 Ohio Atty.Gen.Ops. No. 3509. Opinion No. 3509 provides that the failure of a county commissioner to sign the record of the minutes of a board meeting, as required by G.C. 2407 (the predecessor to R.C. 305.11), did not affect the force or validity of the resolutions adopted at such meeting. The Attorney General relied upon a passage drawn from Corpus Juris and several non-Ohio cases cited therein to advance the notion that the recordation of the record is merely a matter to ensure the correctness of the records of the official action rather than a step in the official proceedings and was not the action of the Board, which is reflected by the actual vote of the Board. Opinion No. 208 involved a similar type of issue and the Attorney
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General relied upon the earlier Opinion No. 3509, without elucidation, in coming to the same conclusion.
Since these Attorney General opinions, this writer could find only two unreported decisions, curiously both from the Third Appellate District of Ohio and from the same panel of judges (Presiding Judge Guernsey authored the opinions, with Judges Cole and Miller concurring), addressing the issue before us, to wit, whether the signing and recordation of the minutes is an official step in the official proceedings requiring strict compliance lest the official action be invalidated in their absence.
The first, and earlier, unreported case is
In re Resolution to Proceed with Constr. of Am.
#
2 Sewer Improvement Area
(Mar. 22, 1985), Allen App. No. 1-84-66, unreported, 1985 WL 9101 , which applied 1941 Ohio Atty.Gen.Ops. No. 3509 in determining that the decision of the board of commissioners was effective upon the vote and the failure to comply with the recordation requirements under R.C. 305.11 did not invalidate the official action.
The second, and more recent, unreported opinion is
Shroyer v. Logan Cty. Bd. of Commrs.
(Mar. 14, 1986), Logan App. No. 8-84-30, unreported, 1986 WL 3485 , which analogized the recording requirement of R.C. 305.11 as a prerequisite to finality through the recordation in an official journal similar in nature to the necessity of a court’s ruling being journalized in the court’s journal so as to provide that degree of finality “necessary to form the predicate for further action or challenge.”
Id.,
citing
Swafford v. Norwood Bd. of Edn.
(1984), 14 Ohio App.3d 346, 348 , 14 OBR 414, 415-416, 471 N.E.2d 509, 511-512 .
I would agree with the reasoning provided in
Shroyer ,
particularly in light of the mandatory nature of the signing and recordation requirement in R.C. 305.11, and would therefore affirm the trial court’s determination regarding the second assignment of error that the resolutions at issue were defective as a result of the failure to comply with R.C. 305.11.
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. The sample copy of the Board’s journal, attached as exhibit E of the appellants' brief and relied upon by the majority at the end of the discussion of the second assignment of error, was not before the trial court and cannot be considered part of the record on appeal. See App.R. 9(A).