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State ex rel. Doran v. Preble County Board of Commissioners

Court of Appeals of Ohio, Twelfth District

August 19, 2013

STATE EX REL. KELLY DORAN, Taxpayer, et al., Plaintiffs-Appellants,


Frost Brown Todd LLC, Stephen N. Haughey, Thaddeus H. Driscoll, for plaintiffs-appellants, Kelly Doran and Village of Camden, Ohio.

Martin P. Votel, Preble County Prosecuting Attorney, Eric E. Marit, Preble County Courthouse, for defendant-appellee, Preble County Board of Commissioners.

Augustus L. Ross III, for defendant-appellee, Lakengren Water Authority.

Garbig & Schmidt, LLC, Phillip R. Garbig, Caroline R. Schmidt, for defendant-appellee, Brumbaugh Construction.



(¶ 1} Plaintiffs-appellants, Preble County taxpayer Kelly Doran and the village of Camden (the "Village"), [1] appeal a decision of the Preble County Common Pleas Court awarding judgment to defendants-appellants, the Preble County Board of Commissioners (the "Board"), Lakengren Water Authority ("Lakengren"), and Brumbaugh Construction Company ("Brumbaugh") after a trial on the issues of Ohio's competitive bidding and ethics statutes.[2] For the reasons set forth below, we affirm the decision of the trial court.

(¶ 2} In early 2008, the Board began exploring options for disposing of leachate generated at the county's landfill (the "leachate project").[3] Thus, the Board entered into negotiations with the Village to discuss the option of transporting leachate through a force main sewer line from the landfill to the Village's collection system. In a "cooperative agreement" entered into by the Board and the Village in October 2008, the parties agreed to share in the funding of the leachate project with the Board assuming responsibility for 70 percent of the funding and the Village responsible for 30 percent. However, in March 2009, the Board terminated discussions with the Village regarding the leachate project and subsequently published a Request for Proposals ("RFPs") that invited interested entities to bid for the award of a 20-year contract to dispose of the leachate (the "leachate contract"). The RFPs indicated that interested offerors could obtain a "project description" from the Board, which consisted of a written project description, a written scope of work, and a written list factors and criteria to be used in the evaluation of the submitted proposals.

(¶ 3} In order to review the submitted proposals, the Board appointed an RFP selection committee. The responsibility of the committee was to evaluate and score proposals, then submit recommendations to the Board regarding an award of the leachate contract. The RFP selection committee, comprised of five total members, included County Engineer Steve Simmons and Chief Deputy County Engineer Kyle Cross. Both Simmons and Cross were residents of Lakengren, a private residential community whose residents formed their own sewer utility for sewer collection and treatment.

(¶ 4} Both the Village and Lakengren submitted proposals to the Board that were reviewed by the selection committee in October 2009. After the proposals had been submitted and opened for review, the selection committee prepared a detailed scoring sheet and scored the proposals before concluding that Lakengren's proposal scored higher than the Village's. Thus, the selection committee voted to recommend to the Board that Lakengren be awarded the leachate contract. The Board adopted the recommendation and entered into a contract with Lakengren on January 25, 2010.

(¶ 5} In December 2010, 11 months after the award of the contract to Lakengren, the Village filed a federal lawsuit in the United States District Court for the Southern District of Ohio. The suit alleged a Section 1983 federal civil rights claim arising from the Board's award of the leachate contract to Lakengren. The suit also sought supplemental federal jurisdiction over state law claims including alleged violations of Ohio's competitive bidding statutes under R.C. 307.86, et seq. However, the lawsuit was dismissed in April 2011 for lack of federal jurisdiction.

(¶ 6} Following dismissal of the federal suit, the Board requested public bids for a contract to construct a pressure force main sewer line and appurtenances from Preble County's landfill to Lakengren. In November 2011, Brumbaugh was awarded the contract to construct the sewer line and construction of the line began in January 2012.

(¶ 7} On March 19, 2012, approximately 27 months after the leachate contract had been awarded to Lakengren, the Village, along with taxpayer Kelly Doran (collectively, "appellants"), filed suit in the Preble County Common Pleas Court against the Board, Lakengren, and Brumbaugh. The complaint alleged violations of Ohio's competitive bidding statutes (R.C. 307.86 and R.C. 307.862), Ohio's conflict of interest and public ethics statutes (R.C. 305.27 and R.C. 102.03), and Ohio's taxpayer statutes (R.C. 309.12 and R.C. 209.13), as well as a claim that the Village was entitled to a writ of mandamus pursuant to R.C. 2731.02, asserting a clear legal right to the award of the leachate contract to the Village.

(¶ 8} By the time the present suit was initiated, 79 percent of the force main sewer line construction had been completed and $240, 125 had already been spent by Preble County on the sewer line alone, as distinguished from the construction of the pumping and retention facilities. In addition, $871, 167.85 of the $1, 490, 670.50 contract had been submitted to Preble County by Brumbaugh for payment.

(¶ 9} A trial was held May 7, 2012, at which point the force main had been completed, pressure-tested, and was ready for service, $333, 799 had been spent by Preble County on the force main portion of the project, and the contract with Brumbaugh was within one month of completion. Testimony at trial revealed that awarding the contract to the Village at this time would cost Preble County taxpayers, at minimum, an additional $381, 355 in the construction of a new sewer line to the Village. On October 30, 2012, based upon these facts, the trial court issued a decision granting the Board's motion to dismiss appellants' claims under Ohio's competitive bidding statutes and ruling that appellants' remaining claims were barred by the equitable doctrine of laches.

(¶ 10} From the trial court's decision, appellants appeal, raising two assignments of error. Appellants do not appeal the trial court's dismissal of their claims under Ohio's competitive bidding statutes but appeal ...

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