The opinion
WEICK, Circuit Judge
(concurring).
I concur in the reversal of the judgments against the State of Ohio and E. P. Perini, as Superintendent. The District Court never acquired jurisdiction over the State of Ohio because it was not made a party defendant in this case. Had it been made a party defendant, the State (as well as the Superintendent) would have had a complete defense of sovereign immunity under the Eleventh Amendment to the Constitution. Krause v. Ohio, 31 Ohio St.2d 132 , 285 N.E.2d 736 (1972), dismissed for want of a substantial federal question 409 U.S. 1052 , 93 S.Ct. 557 , 34 L.Ed.2d 506 (1972), rehearing denied, 410 U.S. 918 , 93 S.Ct. 959 , 35 L.Ed.2d 280 (1973); Jordon v. Gilligan, 500 F.2d 701 (6th Cir. 1974); State ex rel. Williams v. Glander, 148 Ohio St. 188 , 74 N.E.2d 82 (1947).
The Attorney General of Ohio had no ■power or authority to waive sovereign immunity of either the State or its officers and agent, or to consent to a judgment against either of them awarding attorneys’ fees. Grandle v. Rhodes, 169 *906 Ohio St. 77 , 157 N.E.2d 336 (1959); Ford Motor Co. v. Dept. of Treasury of Indiana, 323 U.S. 459 (1945); cf. Edelman v. Jordan, 415 U.S. 651 , 94 S.Ct. 1347 , 39 L.Ed.2d 662 (1974). The judgment entered against the State and the Superintendent is therefore void. Jordon v. Gilligan, supra,.
This leaves only the issue whether Mr. Perini may be held personally liable for fees to the attorney for the plaintiff.
I concur in the remand to the District Court to determine that issue and to adopt findings of fact and conclusions of law relative thereto.
It should be noted that under Ohio law the Attorney General is counsel for the State and for its various departments and agencies. The statute forbids any head of a State department or agency to hire private counsel. Ohio Rev. Code § 109.02.
Because of this statute, in my opinion, the Attorney General ought not to consent to a judgment against Mr. Perini individually unless he had either express or implied authority from Perini to do so. The District Court should take evidence on this issue and adopt findings of fact and conclusions of law.
In the absence of consent, in my opinion Mr. Perini individually had qualified executive privilege or immunity under the principles enunciated by the Supreme Court in Scheuer v. Rhodes, 416 U.S. 232 , 94 S.Ct. 1683 (1974).
In my opinion, no judgment can properly be entered against Mr. Perini individually unless the court finds from all of the evidence that he acted in bad faith. The District Court made a specific finding of good faith on the issues involving the Supplemental Complaint for damages. The factual findings on that issue involved careful consideration of a number of matters. It made no findings, however, on the issue of good faith in connection with the Amended Complaint. It may do so now.