The opinion
Colleen Conway Cooney, Judge,
dissenting.
{¶ 35} I respectfully dissent. As the majority correctly states, when “there is no longer a controversy in dispute,” the matter is moot. I find the fourth assignment of error dispositive because relators’ failure to exhaust administrative remedies in a timely manner has rendered this appeal an academic exercise and seeks an advisory opinion. Therefore, I would reverse the trial court’s decision.
{¶ 36} The ERIP was announced by BOCC resolution in November 2008. The enrollment period was set from January 15, 2009, to January 14, 2010.
{¶ 37} In November 2008, shortly after the ERIP was announced, a grievance was filed on behalf of “the employees of the Cuyahoga County Sanitary Engineer’s Office” pursuant to the ERIP’s grievance procedure. The grievance challenged the BOCC’s decision to exclude the SED from participating in the ERIP. A hearing was held before the county administrator, James McCafferty. Fifteen SED employees attended the hearing. Four bargaining-unit members attended the hearing, including Lesh, one of the relators in the instant case. McCafferty issued a decision stating, “Based on the grievance request and *268 subsequent proceedings held on January 9, 2009, I have denied the grievance request. Therefore, the County Sanitary Engineer’s agency will not be able to participate in the ERIP.” No R.C. Chapter 2506 appeal was pursued to challenge this decision.
{¶ 38} The relators’ attorney sent a taxpayer-demand letter to the county prosecutor in December 2009, just weeks before the ERIP ended. The BOCC correctly argues that relators should have exhausted their administrative remedies by filing an administrative appeal under R.C. 2506. McCafferty issued his decision denying the grievance request on January 20, 2009, which was at the very beginning of the ERIP enrollment period. Relators did nothing to pursue their grievance over exclusion from ERIP until late December 2009, when they contacted the prosecutor. The ERIP was closing on January 14, 2010, one week after relators filed their amended complaint.
{¶ 39} The Ohio Supreme Court has firmly established that “prior to seeking court action in an administrative matter, the party must exhaust the available avenues of administrative relief through administrative appeal.” Noernberg v. Brook Park (1980), 63 Ohio St.2d 26, 29 , 17 O.O.3d 16 , 406 N.E.2d 1095 , citing State ex rel. Lieux v. Westlake (1951), 154 Ohio St. 412 , 43 O.O. 343 , 96 N.E.2d .414. “The purpose of the [exhaustion] doctrine ‘ * * * is to permit an administrative agency to apply its special expertise * * * in developing a factual record without premature judicial intervention.’ ” Nemazee v. Mt. Sinai Med. Ctr. (1990), 56 Ohio St.3d 109, 111 , 564 N.E.2d 477 , quoting S. Ohio Coal Co. v. Donovan (C.A.6,1985), 774 F.2d 693 .
{¶ 40} In the instant case, the BOCC offered the ERIP to all county agencies except the SED. The ERIP contained a grievance procedure for any employee determined ineligible to participate. It provided that ineligible employees could file a grievance in writing within seven days of the employee’s receipt of notice of ineligibility. In November 2008, a grievance was filed on behalf of some of the employees of Cuyahoga County’s SED pursuant to the ERIP’s grievance procedure. A grievance hearing was held on January 9, 2009, before McCafferty. Lesh and three other bargaining-unit members attended the hearing. On January 20, 2009, McCafferty issued a decision stating that SED employees are not eligible to participate in the ERIP. No appeal under R.C. Chapter 2506 was pursued to challenge this decision.
{¶ 41} I find the Ohio Supreme Court’s reasoning in Clagg v. Baycliffs Corp. (1998), 82 Ohio St.3d 277 , 695 N.E.2d 728 , persuasive on this issue. Clagg involved an analogous situation in which property owners brought an action for a declaratory judgment seeking a definition of their rights in a roadway and requested a permanent injunction preventing alteration of the road. The trial court determined that the property owners were required to exhaust their *269 administrative remedies by appealing the regional planning commission’s decision to approve the replat.
{¶ 42} The Ohio Supreme Court found that the regional planning commission was the appropriate governing body to determine whether a change in the easement is proper under R.C. 711.24. Id. at 280 . Since the regional planning commission determined that property owners were not injuriously affected by the proposed change to the roadway, the property owners should have appealed under R.C. 2506.01. Id. The Clagg court further found that when parties fail to exhaust their administrative remedies, declaratory and injunctive relief will be denied. Id. at 281 . See also Buchholtz v. Childers, Ottawa App. No. OT-06-016, 2007-Ohio-870 , 2007 WL 625814 (the court, relying on Clagg, found that appellants should have appealed the regional planning commission’s decision under R.C. Chapter 2506).
{¶ 43} Similarly, I would find that relators failed to exhaust their administrative remedies when they did not appeal McCafferty’s decision denying their grievance in January 2009. Relators waited until December 30, 2009, to file their declaratory-judgment action, when they should have pursued a grievance and appealed McCafferty’s decision under R.C. Chapter 2506. A timely appeal early in 2009 would have enabled a prompt review of their claim before the ERIP ended in January 2010. It is now 2011, and both the BOCC and ERIP no longer exist.
{¶ 44} Moreover, I would sustain the first assignment of error as well and find that relators have no standing to pursue this case as a taxpayer action. When the taxpayer’s aim is merely for his own benefit, no public right exists. Cleveland ex rel. O’Malley v. White, 148 Ohio App.3d 564 , 2002-Ohio-3633 , 774 N.E.2d 337, ¶ 46 , citing State ex rel. Caspar v. Dayton (1990), 53 Ohio St.3d 16 , 558 N.E.2d 49 . 2 In the instant case, there is no question that Lesh is an employee of the SED and that the Teamsters represents SED employees. Thus, relators have a personal and private interest in seeking a determination that SED employees should be allowed to participate in the ERIP. See O’Malley (in which this court held that electrical workers union lacked standing to bring a taxpayer action when the union members have only a personal interest in the matter and no public rights are being protected) and State ex rel. Brewer-Garrett Co. v. Metrohealth Sys., Cuyahoga App. No. 87365, 2006-Ohio-5244 , 2006 WL 2831017 , ¶ 48 in which this court also held that when the taxpayer’s goal in filing a lawsuit *270 is for his own benefit, no public rights exist and a taxpayer action cannot be maintained.
{¶ 45} Because no public rights are being protected through this taxpayer suit and relators’ only goal is the personal benefit to ERIP-ineligible employees, I would find that relators lack standing to bring this taxpayer action under R.C. 309.13. The goal of the ERIP was to save the county money. Including SED employees in the eligibility pool was determined to cost the county money, clearly not in the public’s best interest. And as I stated earlier, the entire matter is now moot. Therefore, I would reverse the trial court’s decision.
. The Ohio Supreme Court in Caspar found that a police officers’ action to compel fringe benefits and the right to vacation pay did not involve enforcement of a public right. Id. at 20.