Mann gave me the appropriate response: that the opinion was a matter of attorney-client privilege and was not a public record. I asked if a commissioner might be willing to waive the confidentiality and release the record, considering that another media source had obviously received such a waiver.
I'm grateful to Commissioner Pete Gerken who instructed Mann to share the legal opinion with me. It starts with a description of the policy desired to be enacted, and says that "there are no statutes which expressly grant a county board of commissioners the authority to adopt a living wage resolution. Thus, the authority of a board of county commissioners to adopt a living wage policy exists only if it can be implied from a statute."
The prosecutor's office then 'implies' that since the Ohio Revised Code is silent on certain requirements for economic development incentives, the Commissioners can impose living wage mandates.
This is exactly opposite to, and in contradiction with, what every county commissioner is told by other commissioners and the County Commissioners Association of Ohio. The rule of thumb is that, as creatures of statute, if the ORC is silent on an issue commissioners have no authority.
However, with the County Prosecutor saying the authority is 'implied,' our Board of County Commissioners has legal protection for voting to impose a living wage requirement for any company receiving the specific economic development incentives discussed in the opinion.
It should also be noted that the commissioners did NOT amend the resolution to reflect their inability to mandate a living wage for companies doing business with the county. According to Mann, the resolution was passed as publicized in this link.
Finally, while the opinion says the commissioners can request a certification of payment of living wages as part of a bid package, they cannot use payment of living wages in determining the winning bidder. However, why you'd request certification of a factor that cannot be considered in making a decision is beyond me. Does anyone really believe that companies not paying a 'living wage' and who clearly state such in their bid package will actually be considered fairly against companies who do pay the living wage?
The opinion portion is as follows, my emphasis in bold:
"Any analysis of the authority of a board of county commissioners must begin with the well established principle that, as a creature of statute, a board of county commissioners has only the authority expressly conferred by statute and the authority that may be implied therefrom as reasonably necessary to make the express powers effective. Shriver v. Board of Commissioners (1947), 148 Ohio St. 277, 74 N.E.2d 248; State ex rel. A. Bentley & Sons Co. v. Pierce(1917), 96 Ohio St. 44, 117 N.E. 6. Thus, whether the board of county commissioners has the power to adopt a living wage resolution depends upon the authority expressly and impliedly granted to thye board by statute. 1992 Ohio Op. Atty Gen. 96.
We note that there are no statutes which expressly grant a county board of commissioners the authority to adopt a living wage resolution. Thus, the authority of a board of county commissioners to adopt a living wage policy exists only if it can be implied from a statute. The proposed resolution is, generally, not authorized by Ohio law and unenforceable. There are, however, two areas covered by the proposed resolution--tax increment financing (TIF) and economic development loan and grants--in which a board of county commissioners is granted broad authority by statute. While these statutes do not expressly grant a county board of commissioners the authority to adopt a living wage resolution, the grant of authority is broad enough that the authority to adopt a living wage policy can be implied.
Tax Increment Financing (TIF) is a discretionary, economic development mechanism available to local governments in Ohio to finance public infrastructure improvements and, in certain circumstances, residential rehabilitation. A TIF allows local governments to invest in infrastructure and other improvements and pay for them by capturing the increase in property tax revenues. The increase in taxes generated by the enhancements, also known as increment, is used to pay the public debt incurred while making these improvements. Payments derived from the increased assessed value of any improvement to real property beyond that amount are directed towards a separate fund to finance the construction of public infrastructure defined within the TIF legislation. R.C. 5709.77-81.
There are many technical, statutory requirements that must be met to establish a TIF; such as the improvement must be for a public purpose and the real property tax exemption cannot exceed ten years. R.C. 5709.78(A). There are, however, no statutory guidelines relating to the factors that a board of county commissioners should consider when evaluating a proposed TIF.
Both the Ohio Department of Development and the Council of Development Finance Agencies recommend that a broad range of factors be considered when evaluating a proposed TIF. This broad grant of statutory authority, as well as the discretionary nature of TIFs, implies that County Commissioners are authorized to consider the proposed use of the tax exempt property, including employee compensation issues.
Therefore, when evaluating and granting tax increment financing, the Commissioners have the authority to adopt and enforce the proposed living wage policy as it relates to the proposed use of the property that is receiving the tax exemption.
A board of county commissioners also has broad statutory authority to grant economic loans and grants. County Commissioners, through an economic development director, have the discretionary authority to make loans or grants and provide other forms of financial assistance for the purpose of economic development. R.C. 307.07(B)(5). There are no statutory restrictions or conditions, except that the purpose of the loan or grant must be for economic development, nor is the term economic development defined.
This broad grant of statutory authority, as well as the discretionary nature of economic development loans and grants, implies that County Commissioners are authorized to approve a loan or grant with conditions and/or restrictions, including employee compensation issues.
Therefore, when evaluating and granting and economic development loans or grants pursuant to R.C. 307.07(B)(5), the Commissioners have the authority to adopt and enforce the proposed living wage policy as a condition of granting the loan or grant.
Lastly, the proposed resolution also requires a business to provide a compliance affidavit related to the living wage policy and any additional documents requested by the Board to verify that a living wage is paid to any and all employees covered before an award of any public incentive or contract of $10,000 or greater. County commissioners may, under Ohio law, seek whatever information they determine is necessary to carry out their statutory functions.
However, except in the area of tax increment financing and economic development loans and grants, Ohio law does not authorize the commissioners to impose any type of penalty or disqualification for failing to submit a living wage compliance affidavit or documentation. In addition, under Ohio law, compliance or non-compliance with the proposed living wage policy cannot be used for purpose of determining the ‘lowest and best’ bid.
Research from a variety of sources indicates that living wage laws make positive differences in the lives of low wage workers, can help improve efficiency among government contractors, have a low cost to local governments, and improve economic development policies made at the local level. However, under current Ohio law, County Commissioners are not authorized to fully adopt such a policy until the General Assembly enacts significant changes in state law.
This office is willing to assist the Board in developing proposed amendments to the Ohio Revised Code that would authorize County Commissioners to fully adopt, and take advantage of the benefits of, a living wage policy. We are also encourage the Board to seek assistance and advice from the County Commissioners Association in the effort to enact this necessary legislation."