Ohio Public Law Update

    View Authors Fall 2007
    Progress on Diesel Emission Reduction Grant Program

    The State of Ohio is close to announcing a new Diesel Emission Reduction Grant program.

    In 2006 the Ohio Legislature adopted Section 122.861 of the Ohio Revised Code, relating to the creation of a Diesel Emissions Grant Fund and a diesel emissions revolving loan fund, to implement in the State of Ohio Section 793 of the federal statute known as the Energy Policy Act of 2005 (Energy Policy Act). R.C. Section 122.861 creates a Diesel Emissions Grant Fund for the deposit of any federal grant moneys received under Section 793 of the Energy Policy Act, any moneys appropriated for the fund purposes by the General Assembly and any gifts to or other income of that fund.

    In Am. Sub. H.B. 119, passed by the General Assembly this year, the General Assembly appropriated $9,817,105 of the Highway Operating Fund to be deposited in the Diesel Emissions Grant Fund on July 1, 2007, and $10, 057,814 to be deposited in that fund on July 1, 2008. Under R.C. Section 122.861 and Am. Sub. H.B. 119 these funds are to be used in their respective fiscal years for the reduction of emissions from diesel engines and to fund projects involving the purchase or use of hybrid and alternative fuel vehicles allowed under guidance developed by the Federal Highway Administration for the Congestion Mitigation and Air Quality Program. The reduction can be achieved by replacement, repowering and retrofitting of existing fleet equipment or by anti-idle equipment. Funded projects must be in nonattainment areas of the State.

    Diesel emissions reduction grants are to be used for projects relating to certified engine configurations and verified technologies consistent with Section 793. Examples of public fleet equipment eligible for grant-funded improvement are school buses, mass transit, trash trucks and government fleets. Examples of private fleet equipment eligible for grant-funded improvement (with a public sponsor) are long- and short-haul trucks, nonroad vehicles or construction equipment working on a surface transportation construction project within an Ohio nonattainment or maintenance area, and switcher locomotives. The maximum grant to any one proposal is expected to be $1,000,000. The minimum request is expected to be $20,000. The grants will be for up to 80 percent of the project cost, with a minimum 20 percent contribution by the applying entity.

    Clients should be on the alert for the announcement in the next month or so of the application process for these grants. It would be wise to begin thinking of eligible projects now – the first round of grant applications will be due in the near future. There is expected to be a 45-day period between the official announcement and the due date of applications. Not all eligible projects will be funded.

    Recent Legislation of Interest

    Senate Bill 117, which was passed June 19, 2007, and became effective September 24, 2007, establishes a statewide system for the regulation of cable and video service in Ohio. The Director of Commerce is the new franchising authority for the State and will provide Video Service Authorizations to cable operators. Existing municipal and township franchises and competitive video service agreements will continue to be effective only until their scheduled expiration dates. The renewal or extension of existing franchises is prohibited.

    Reminders on previously reported Bills:

    Senate Bill 7, which is a comprehensive revision to eminent domain laws in Ohio, became effective October 10, 2007.

    House Bill 9, which amends the laws governing public records, became effective September 29, 2007.

    Recent Decisions of Interest

    H.B. 329, dealing with apportionment of local government funds, did not violate Uniformity Clause of the Ohio Constitution (Section 26, Article II), since Uniformity Clause prohibits arbitrary geographic distinctions, not reasonable measures that have a geographic element or disparate geographic effect; under the circumstances, limiting the exclusion provision in H.B. 329 to certain counties based on population represents a rational balancing by the General Assembly of political subdivision interests; and the population thresholds of H.B. 329 are open-ended and any county may qualify under those thresholds in the future given a sufficient change in circumstances. E. Liverpool v. Columbiana Cty. Budget Comm., 114 Ohio St.3d 133

    Court reviewed ordinance and determined that it set forth legally sufficient reasons for its passage as an emergency ordinance and those reasons, when considered together, were not so conclusory, tautological or illusory as to invalidate the council's emergency declaration in that ordinance. State ex rel. Laughlin v. James, 115 Ohio St.3d 231

    No duty to certify initiative petition for a proposed ordinance where petitioners failed to file a certified copy of the proposed ordinance with the statement required by R.C. 731.32; with respect to the certification process under R.C. 731.32 the Court stated that "for initiative petitions, the petitioners themselves are more appropriate persons to attest to the accuracy of their proposed ordinance or other measure." State ex rel. Lewis v. Rolston, 115 Ohio St.3d 293

    An unsuccessful candidate for mayor at a primary election was not barred from being a candidate for the board of education at a general election held in that same year. State ex rel. Brinda v. Lorain Cty. Bd. of Elections, 115 Ohio St.3d 299

    A county solid waste management district is a public utility as that term is used in R.C. 5705.44 and therefore a county's contractual obligation is excepted from the expenditure of public funds certification requirements of R.C. 5705.41(D). St. Marys v. Auglaize Cty. Bd. of Commrs., 115 Ohio St.3d 387

    Ordinance proposed by initiative petition is not an administrative action but "is legislative in nature because it creates a new law directing the acquisition of property and its permanent maintenance for use as a park, for recreation, and for preservation of green space" and therefore board of elections is ordered to place that proposed ordinance on the ballot. State ex rel. Citizen Action for a Livable Montgomery v. Hamilton Cty. Bd. of Elections, 115 Ohio St.3d 437

    Replacement of stolen or missing sewer grate located in street at curb and necessary to safe operation of storm water system fell within definition of maintenance or upkeep, not provision, design or reconstruction, and was proprietary function, and, therefore, summary judgment for city on political subdivision immunity grounds was denied. Martin v. Gahanna, 2007-Ohio-2651 (Ohio App. 10th Dist.)

    The installation of a sanitary sewer by a political subdivision involves a governmental function and therefore the doctrines of equitable and promissory estoppel do not apply. State ex rel. Bayus v. Woodland Park Properties, 2007-Ohio-3147 (Ohio App. 7th Dist.)

    The City of Lima challenged the constitutionality of R.C. 9.481 (enacted in 2006), which limits the ability of political subdivisions to condition employment upon residency. The Court of Appeals held that R.C. 9.481 was not validly enacted pursuant to Article II, Section 34, of the Ohio Constitution and violates Section 3, Article XVIII (municipal home rule), of the Ohio Constitution. The Court of Appeals determined that the City's ordinance, which established residency requirements for City employees hired after its date of passage, "is a valid exercise of local self-government pursuant to Section 3, Article XVIII of the Ohio Constitution and prevails, R.C. 9.481 notwithstanding." The Court of Appeals, in addressing the General Assembly's declaration that its intent in enacting R.C. 9.481 was to recognize the "inalienable and fundamental right of an individual to choose where to live pursuant to Article I, Section 1 of the Ohio Constitution," stated that "there is no constitutional right to choose where one lives and, at the same time, demand employment from an unwilling employer." Lima v. State, 2007-Ohio-6419 (Ohio App. 3rd Dist.)

    The positions of county commissioner and member of the board of trustees of a community college district are incompatible. 2007 Op. Att'y General No. 2007-020

    Article II, § 34a of the Ohio Constitution and Am. Sub. H.B. 690 do not render confidential information about a public employee's rate of pay, number of hours worked or amount of compensation, nor do they otherwise exempt this information from inspection and copying under R.C. 149.43. Therefore, any person has the right under R.C. 149.43 to inspect and copy information about a public employee's pay rate, hours worked and amounts paid. 2007 Op. Att'y General No. 2007-026

    The board of health of a general health district, which is a political subdivision, as defined in, and under, R.C. 9.03, is not permitted to conduct a campaign to support the passage of a tax levy, but may conduct a program to provide information about its finances, activities, and governmental actions in a manner that is not designed to influence the passage of the levy. 2007 Op. Att'y General No. 2007-036. Note of interest: a "political subdivision" as defined in R.C. 9.03 does not include a municipal corporation that has adopted a charter under Section 7, Article XVIII, of the Ohio Constitution or a county that has adopted a charter under Sections 3 and 4, Article X, of the Ohio Constitution.