IN THE SUPREME COURT OF OHIO CYNTHIA M. MUSTO, f i!¢^ CASE NO. 2014-1771 Appellant, -vs- LORAIN COUNTY BOARD OF REVISION, THE LORAIN COUNTY AUDITOR AND TAX COMMISSIONER OF OHIO, Appellees. Appeal from the Ohio Board of Tax Appeals Board of Tax Appeals Case No. 2013-4191 MERIT BRIEF OF APPELLANT CYNTHIA M. MUSTO Karen H. Bauernschmidt #0006774 (Counsel of Record) Charles J. Bauernschmidt #0004648 Stephen M. Nowak #0078349 Glen E. Littlejohn #0064932 KAREN H. BAUERNSCHMIDT CO., LPA 1370 West 6th Street, Suite 200 Cleveland, Ohio 44113 T: 216-566-8500 / F: 216-566-0942 [email protected]John P. Kilroy #0021611 (Counsel of Record) Lorain County Prosecutors Office 225 Court Street, 3rd Floor Elyria, OH 44035-5642 [email protected]T: 440-329-5123 / F: 440-329-5430 Attorneys for Appellees Lorain County Board of Revision and the Lorain County Auditor Attorneys for Appellant Cynthia M. Musto Joseph W. Testa Tax Commissioner of Ohio Department of Taxation 30 East Broad Street Columbus, OH 43215 T: 614-466-2166 / F: 614-466-6401 Tax Commissioner of Ohio DEC 2 0 2014 V d / J . ^ Gnr.. «1...... . .. .^.....n . . ... . .ii.^:,^$ CLERK OF COURT RSME CoURT OFC
Transcript
IN THE SUPREME COURT OF OHIO
CYNTHIA M. MUSTO,
f i!¢^
CASE NO. 2014-1771
Appellant,
-vs-
LORAIN COUNTY BOARD OFREVISION, THE LORAIN COUNTYAUDITOR AND TAX COMMISSIONEROF OHIO,
Appellees.
Appeal from the Ohio Board of TaxAppeals
Board of Tax Appeals Case No.2013-4191
MERIT BRIEF OF APPELLANT CYNTHIA M. MUSTO
Karen H. Bauernschmidt #0006774(Counsel of Record)Charles J. Bauernschmidt #0004648Stephen M. Nowak #0078349Glen E. Littlejohn #0064932KAREN H. BAUERNSCHMIDT CO., LPA1370 West 6th Street, Suite 200Cleveland, Ohio 44113T: 216-566-8500 / F: [email protected]
John P. Kilroy #0021611(Counsel of Record)Lorain County Prosecutors Office225 Court Street, 3rd FloorElyria, OH [email protected]: 440-329-5123 / F: 440-329-5430
Attorneys for Appellees Lorain CountyBoard of Revision and the Lorain CountyAuditor
Attorneys for Appellant Cynthia M. Musto
Joseph W. TestaTax Commissioner of OhioDepartment of Taxation30 East Broad StreetColumbus, OH 43215T: 614-466-2166 / F: 614-466-6401
Tax Commissioner of Ohio
DEC 2 0 2014
V d /
J . ^
Gnr.. «1...... . .. .^.....n .. ... . .ii.^:,^$
CLERK OF COURTRSME CoURT OFC
TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................. ii
The decisions of the Board of Tax Appeals to deny the motions to continue thehearing were unreasonable, unlawful, and/or an abuse of discretion, since the BTAfailed to properly apply and/or consider this Court's legal standard in State v. Unger,67 Ohio St.2d 65, 423 N.E.2d 1078 (1981) ....................................................... 5
The Board of Tax Appeals' decision is unreasonable, unlawful, and/or an abuse ofdiscretion, since the BTA reverted to the Auditor's value despite competent evidencethat negated the validity and reliability of the Auditor's vaiue ... ...... ............ ......... .•• 16
AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp.,50 Ohio St.3d 157, 553 N.E.2d 597 (1990) .............................................................
State ex reL Ormet Corp. v. Industrial Com'n of Ohio, 54 Ohio St.3d 102, 561 N.E.2d 920( 1990) ..............................................................................................................
6
16
17
15
11, 15
11, 15
State v. Unger, 67 Ohio St.2d 65, 423 N.E.2d 1078 (1981) ............................................ 5-7,9,10
This case is before the Court pursuant to an appeal from a decision of the Board
of Tax Appeals ("BTA"). This case originated from a 2012 real estate tax complaint filed
by the Property Owner.
The subject property is a two-story, single-family residence located at 16449 S.
Boone Road in Columbia Township, Ohio. (Supp. p. 39). The subject site contains 10.01
acres of land. (Supp, p. 38). In 1999, this site was improved with a 4,094 square foot
two-story, single-family residence. (Supp. p. 39). As of the tax lien date, the property
was thirteen (13) years old. (Supp. p. 39). The subject property is owner occupied.
(Supp. p. 12). There is also a pole barn and indoor horse arena. (Supp. p. 14).
For tax year 2012, the Lorain County Auditor (hereinafter "Auditor") reappraised all
parcels in Lorain County. For tax year 2012, the Auditor valued the subject property at
$547,260. (Supp. p. 38). Cynthia M. Musto (hereinafter "Appellant") filed a tax complaint
with the Lorain County Board of Revision (hereinafter "BOR") for tax year 2012 seeking
a reduction in the value of the subject property. (Supp. p. 49).
On July 3, 2013, the BOR conducted a hearing on the merits of the Appellant's
complaint. (Supp. p. 50). At the BOR hearing, the Appellant testified and submitted an
opinion of value requesting that the subject property be valued at $405,000. (Supp. p. 51).
The Appellant's opinion set forth neighborhood comparable sales and listings in support of
her requested value. (Supp. p. 5). The Appellant's opinion also contained photos, sketches,
and information from the Auditor's website. (Supp. p. 59-64).
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Additionally, upon questioning from the BOR, the Appellant provided a refinancing
appraisal report prepared and certified by Ohio licensed appraiser James A. Malloy, which
valued the subject property at $405,000 as of January 30, 2009. (Supp. p. 28-37). Mr.
Malloy's appraisal report contained his certification that "all statements and information in
this appraisal report are true and correct." (Supp. p. 32-33).
The members at the BOR hearing included Attorney John P. Kilroy. Mr. Kilroy
entered his appearance at the hearing as the Auditor's representative on the BOR. (S.T.
Ex. E, Audio Track 1 at 0:23). Mr. Kilroy presided over the BOR hearing. (S.T. Ex. E,
Audio Track 1 at 0:34). Mr. Kilroy examined the Appellant and her spouse as a member
of the BOR. (S.T. Ex. E, Audio Track 1 at 21:27).
As a member of the BOR, Mr. Kilroy voted to deny the Appellant's request for a
change in valuation. (S.T. Ex. E, Audio Track 2 at 0:21). Mr. Kilroy signed the BOR
worksheet as the Auditor's member on the BOR. (Supp. p. 73). On August 7, 2013, the
BOR rendered its decision retaining the Auditor's value for tax year 2012. (Supp. p. 77).
The Appellant timely filed an appeal to the BTA on September 5, 2013. (Supp. 1).
At the BTA hearing held on March 19, 2013, Mr. Kilroy entered his appearance as legal
counsel advocating on behalf of the Lorain County Auditor. (Supp. p. 3). Counsel for the
Appellant objected to Mr. Kilroy's appearance as counsel for the Auditor since Mr. Kilroy
was a hearing board member of the BOR that decided the matter below. (Supp. p. 5). The
BTA overruled the Appellant's objection without explanation. (Supp. p. 5).
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When it appeared the Appellant's expert appraiser and key witness (who was
travelling two and a half hours from Avon Lake, Ohio to Columbus, Ohio) was late for the
hearing, the Appellant moved for continuance to a later date and time. However, the motion
was curtly denied, because "notice was sent from this office on September 12, 2013,
advising all parties that there was a hearing set for March 4th, 2014, at 9:00 o'clock a.m."
(Supp, p. 4-5).
The Appellant then moved to keep the record open for ten days to prove good cause
in the event an emergency delayed the out-of-town appraiser, but the motion was denied
without explanation. (Supp. p. 4-5). The Appellant then moved to allow the appraiser to
attend the hearing by telephone, but the motion was denied, because "[t]his Board only has
telephonic hearings for small claims, and this matter is not in the small claims track."' (Supp.
p. 4-5). The Appellant further moved for a continuance of just one hour and forty five
minutes, but the motion was brushed aside with the statement "we did address the motions
at the beginning of this hearing." (H.T. 18:20-19:1; 19:12-13).
Appellant's expert appraiser's appraisal report was proffered at the hearing and
accepted into the record. (H.T. 14:11-18; 15:24-25 through 16:1-4). The County Appellees
called no witness and did not present any evidence at the BTA merit hearing. (Supp. p. 6).
After the hearing concluded, the Appellant's counsel was able to determine the out-
of-town appraiser travelled to the wrong forum location in error and consequently was
running late, but was traveling to the hearing.
1 Under the Board of Tax Appeals new rules adopted October 9, 2013, the subjectproperty would have been eligible to participate in the BTA's small-claims docket.However, the Musto Notice of Appeal was filed with the BTA on September 5, 2013.(Supp. 1).
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On September 24, 2014, the BTA rendered its decision, wherein the BTA unlawfully
and unreasonably denied the Appellant's written motion to disqualify Mr. Kilroy as counsel.
The BTA unlawfully and unreasonably retained the Auditor's value for the subject property
for tax year 2012. (Appx. p. 5-7). The Auditor's value was based solely on the cost approach
even though the subject property was thirteen years old. (Supp. p. 38-39).
The BTA determined that the Appellant "failed to provide a competent appraisal of
the subject property, attested to by a qualified expert." (Appx. p. 6). The BTA also stated
"that the Appellant also provided this board with an appraisal report, which was for the tax
lien date in issue, but was not aftested to by the author." (Appx. p. 6). The BTA stated
Appellant's appraiser did not testify as to her appraisal analysis; however, this shortcoming
was a direct result of the BTA's refusal to continue the hearing for a short period of time.
The Appellant's appraiser and key witness, Elizabeth Caldwell, is an Ohio licensed
residential real estate appraiser. (Supp. p. 9, 12, 25 & 27). The effective date of Ms.
Caldwell's report is the tax lien date at issue: January 1, 2012. (Supp. p. 12; Appx. p. 6).
Ms. Caldwell's appraisal report contains her certification. (Supp. p. 27). Ms. Caldwell's
appraisal report was timely disclosed and submitted to the BTA and the County Appellees
in accordance with the BTA's rules. (Supp. p. 1).
Ms. Caldwell's report indicates she conducted an interior and exterior inspection of
the subject property. (Supp. p. 12 & 25). The report contains interior and exterior
photographs of the subject property. (Supp. p. 15-18). The report contains comparable
sales (with barns and riding arenas) with photographs and the adjustment of those sales to
the subject property. (Supp. p. 11, 13 & 19-21). The report contains a highest and best use
analysis, neighborhood and market analysis, a thorough description of the property, the
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recitation of significant condition issues, and an analysis of the comparable sales. (Supp.
p. 10 & 14). The report also contained a plot map, measured sketch of the subject property,
and a location map showing the subject property and the comparable sales. (Supp. p. 21-
23). Ms. Caldwell's report is a full and complete appraisal of the subject property and
accurately reflects fair market value.
Since the BTA's decision was unreasonable, unlawful, and an abuse of discretion,
the Appellant timely appealed the BTA's decision to the Ohio Supreme Court. The Notice
of Appeal was timely filed on May 12, 2014 with the Ohio Supreme Court. (Appx. p. 1-8).
Mr. Kilroy is counsel of record for the Appellees.
ARGUMENT
Proposition of Law No. 1:2
The decisions of the Board of Tax Appeals to deny the motions tocontinue the hearing were unreasonable, unlawful, and/or an abuse ofdiscretion, since the BTA failed to properly apply and/or consider thisCourt's legal standard in State v. Unger, 67 Ohio St.2d 65, 423 N.E.2d1078 (1981).
The Appellant's notice of appeal to this Court sets forth six assignments of error
regarding the BTA's decision to deny the motions to continue the hearing to allow her key
witness appraiser to appear and testify. In fact, the Appellant asked for a continuance of
just under two hours, plus the alternatives of appearance by telephone and rescheduling
the hearing to another day. (Supp. p. 3, 4 & 7). Further, the appraiser was the only
witness in this matter, since the Appellees had no witness of their own to present at the
hearing. (Supp. p. 3 & 6). This Court acknowledges "the established principle that courts
Z This Proposition of Law encompasses the Appellant's Assignments of Error Nos. 1, 2,3, 4, 11, and 12 as set forth in the Appellant's Notice of Appeal.
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liberally continue cases since denying a continuance would deny a litigant his day in
court." LTC Properties, Inc. v. Licking Cty. Bd. of Revision, 133 Ohio St.3d 111, 2012-
Ohio-3930, ¶14. Further, it is established that this Court generally will not reverse the
BTA's determination without a showing that the board's "attitude is unreasonable,
arbitrary or unconscionable." Id. at ¶13. Most instances of abuse of discretion will result
in decisions that are simply unreasonable, rather than decisions that are unconscionable
or arbitrary. AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp.,
50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
A decision is unreasonable if there is no sound reasoning process that would
support that decision. Id. Various property tax cases address the standard of review.
See Wellington Square, L.L.C. v. Clark Cty. Aud., 2nd Dist. No. 2009-CA-87, 2010-Ohio-
2928, ¶27 ("A decision is unreasonable if it lacks a sound reasoning process.") and Euclid
Realty L.L.C. v. Lake Cty. Aud., 11t" Dist. No. 2012-L-027, 2012-Ohio-5332, ¶16 (the term
"abuse of discretion" is one of art, "connoting judgment exercised by a court, which does
not comport with reason or the record.").
This Court in HIN, L.L.C. v. Cuyahoga Cty. Bd. of Revision, 124 Ohio St.3d 481,
2010-Ohio-687 stated that "a decision of the BTA will be affirmed if it correctly applies the
law." Id. at ¶13. The law regarding the abuse of discretion and the denial of a motion to
continue is set forth by this Court in State v. Unger, 67 Ohio St.2d 65, 423 N.E.2d 1078
(1981) as follows:
In evaluating a motion for a continuance, a court should note, interalia: the length of the delay requested; whether other continuanceshave been requested and received; the inconvenience to litigants,witnesses, opposing counsel and the court; whether the requesteddelay is for legitimate reasons or whether it is dilatory, purposeful, orcontrived; whether the defendant contributed to the circumstance
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which gives rise to the request for a continuance; and other relevantfactors, depending on the unique facts of each case. Id. at 67-68.
Applying the Unger standard to the facts at hand reveals the following:
I . The length of the delay requested.
The Appellant requested a delay for as little as one hour and forty five minutes.
(Supp. p. 7). The Appellant also requested Ms. Caldwell's appearance by telephone
andlor to reschedule the hearing to later date and time. (Supp. p. 3-4). The Appellant
also requested to hold the record open to prove good cause regarding the rationale for
why Ms. Caldwell was late. (Supp. p. 4).
2. Whether other continuances have been requested and received.
The record shows the Appellant had requested no other continuances.
3. The inconvenience to litigants, witnesses, opposing counsel and thecourt.
Opposing counsel was present and regularly attends BTA hearings throughout the
year, so delaying the hearing for two hours or rescheduling the hearing to another date
would not have unduly inconvenienced opposing counsel. No other parties or witnesses
were present at the hearing. Opposing counsel had no witness of his own, so no other
witness would have been inconvenienced. Opposing counsel also stated, " I also have
five certified sales that were ignored by the appraisal, and I would want to ask her [Ms.
Caldwell] why she didn't consider these sales." (Supp. p. 4). Appellant's counsel
responded, "Those are the five comparable sales we discussed with [the appraiser].
She's well aware of the sales and I'm sure would be knowledgeable enough to answer
any and all questions that the County might have." (Supp. p. 4). Clearly, a continuance
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would have afforded the parties the opportunity to present, challenge and cross-examine
the expert appraiser witness on her valuation analysis.
4. Whether the requested delay is for legitimate reasons or whether it isdilatory, purposeful, or contrived.
The requested delay was due to unforeseen and unknown circumstances that
arose the morning of the hearing that prompted the appraiser to be running late. The
record reveals the BTA never afforded the Appellant the opportunity to discover the
location or circumstances of the appraiser by telephone prior to ruling on the Appellant's
motions. In fact, the BTA curtly stated, "This Board expects all parties to be ready and to
proceed to prosecute their cases as scheduled and notified all parties." (Supp. p. 5). No
further rationale or explanation by the BTA was set forth for denying the motions.
5. Whether the Appellant contributed to the circumstance which givesrise to the request for a continuance.
The Appellant did not contribute to the need for a continuance.
6. Other relevant factors, depending on the unique facts of each case.
The Appellant's appraiser was the only expert witness in this matter. The
appraiser's tax-lien-dated and certified report had already been timely filed with the BTA
and received by opposing counsel. (Supp. p. 1). Opposing counsel was prepared to
cross-examine and challenge the witness on the appraisal. (Supp. p. 4).
Most importantly, since 2012 was a reappraisal year for Lorain County, the BTA's
denial of the Appellant's motions for continuance prevents the Property Owner from
challenging the valuation of her real property for three years. R.C. § 5715.19(A)(2) bars
the Appellant from refiling for the triennium period. Such a result is unfairly harsh, unjust
and unreasonable.
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The Fourth District Court of Appeals in King v. Kelly, 4th Dist. No. 02CA42, 2003-
Ohio-4412, applied the CJngerstandard to facts that mirror the present case. In King, the
litigants (who were also witnesses) traveled to the wrong location on the day of the
hearing. Id. In the matter at issue, Appellant's expert witness, Ms. Caldwell, did the same
thing-she mistakenly went to the wrong location on the day of the hearing.
The King court found that denying the motion for a short continuance was an abuse
of discretion. Id. The King court reasoned as follows:
{¶3} The matter came on for an evidentiary hearing on June 19,2001. Appellants, however, did not appear. Their counsel didappear and was granted a short continuance during which timehe attempted to ascertain appellants' whereabouts. After callingtheir home, and receiving information that they were enroute,counsel informed the magistrate. The magistrate decided tocommence the hearing.
^**
{¶5} At the conclusion of the hearing, appellants' counselreceived word that his clients were on their way after havingappeared for the hearing in the wrong place. *** The magistratedid grant appellants fifteen additional minutes to appear but, whenappellants still did not appear, he deemed the matter submitted fordecision. Appellants arrived ... some ten minutes after that.
{¶12} Applying these factors to the circumstances in the case subjudice, we conclude that additional time should have beenprovided to appellants to allow them to attend the hearing. Theuncontroverted evidence reveals that appellants were enroute to thehearing when the magistrate deemed the matter submitted.Moreover, their absence at the beginning of the hearing was notdue to neglect or disregard. Indeed, they made every effort toattend the hearing, but were directed to the wrong location theywere on their way. Finally, the appellants did arrive for the hearingapproximately ten minutes after its conclusion. In light of theseparticular facts and circumstances, we believe that the hearingshould have been delayed for a short time until appellants could
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attend (since the court personnel knew they were on their way)or continued the matter to another time.
{¶13}*** when the record reveals that the delay resulted from anhonest mistake and was not committed in bad faith or withpurpose to simply delay the proceedings, and that the litigantswere on their way to the hearing, every effort should be made toafford to the litigants their right to be heard. Our ruling isbuttressed by the polestar of Ohio's procedural jurisprudence whichis that cases should be decided on their merits when possible.See State ex rel. Montgomery v. R & D Chem. Co. (1995), 72 OhioSt.3d 202, 204, 648 N.E.2d 821; Perotti v. Ferguson (1983), 7 OhioSt.3d 1, 3, 454 N.E.2d 951; Peterson v. Teodosio (1973), 34 OhioSt.2d 161, 175, 297 N.E.2d 113. For these reasons, we agree withAppellants that the hearing should have been continued for ashort time or until a later date. [emphasis added]
In the present matter, the facts are nearly identical to those present in King, supra.
The Appellant requested a short continuance, which was denied. The BTA neither set
forth a sound reasoning process for its denials nor applied the Ungertest. Therefore, the
BTA failed to use the sound reasoning process in determining whether a continuance
should be granted or denied as established by this Court.
Accordingly, in consideration of Unger, King, and the other legal authorities cited
in this proposition, this Court should find that the BTA unlawfully and unreasonably
abused its discretion in denying the Appellant's motions for continuance.
Further, participants in administrative proceedings are guaranteed due process by
the United States and Ohio Constitutions. Chirila v. Ohio State Chiropractic Bd. (2001),
145 Ohio App.3d 589, 593, 763 N.E.2d 1192. The fundamental requirements of
procedural due process are notice and hearing, that is, an opportunity to be heard. Korn
v. Ohio State Med. Bd. (1988), 61 Ohio App.3d 677, 684, 573 N.E.2d 1100.
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Procedural due process also embodies the concept of fundamental fairness. Sohi
v. Ohio State Dental Bd. (1998), 130 Ohio App.3d 414, 422, 720 N.E.2d 187. Statutory
procedural provisions aside, a requirement to conduct a "hearing" implies a "fair hearing."
State ex rel. Ormet Corp. v. Industrial Com'n of Ohio ( 1990), 54 Ohio St.3d 102, 104, 561
N.E.2d 920.
Accordingly, the BTA's refusal to grant any continuance under the circumstances
was fundamentally unfair and deprived the Appellant a reasonable opportunity to be
heard. Therefore, this Court should find that the BTA's decisions to deny the Appellant's
continuance requests violated the Appellant's due process right to a fair hearing, which
resulted in the unlawful taking of the Appellant's property.
Proposition of Law No. 11:3
The Board of Tax Appeals' decision is unreasonable, unlawful, and/oran abuse of discretion, since the BTA failed to exclude and/or disqualifycounsel for the Appellees.
The Appellant's notice of appeal to this Court sets forth six assignments of error
regarding the representation by Attorney John P. Kilroy at the BOR hearing where he
served as a hearing board member and then acted as the attorney advocating for Auditor
and BOR before the BTA. The Appellant's objection to Attorney Kilroy's representation
and Appellant's motion to disqualify were based upon the fact Attorney Kilroy served as
a BOR hearing officer for the Auditor in the underlying matter, participated in the BOR
decision process and then Mr. Kilroy representing those same parties advocating on their
behalf as their attorney before the BTA. The BTA overruled the Appellant's oral objection
This Proposition of Law encompasses the Appellant's Assignments of Error Nos. 7, 8,9, 10, 11, and 12 as set forth in the Appellant's Notice of Appeal.
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to Mr. Kilroy's representation and denied the Appellant's written motion to disqualify Mr.
Kilroy without explanation. (Supp. p. 5; Appx. p. 5).
R.C. § 102.01 prohibits a current public official or employee from representing a
person on any matter in which the public official or employee personally participated as a
public official or employee through decision, approval, disapproval, recommendation, the
rendering of advice, investigation, or other substantial exercise of administrative
discretion. At hearing before the BTA in this matter, Mr. Kilroy stated:
I will note for the record that when I sit at the Board of Revision, I'man employee of the County Auditor's Office. My salary is paid by theCounty Auditor. I sit on the Board of Revision in the Auditor's chair,in the Auditor's seat, and in his shoes as the Auditor's designee. Iam here representing the Lorain County Auditor so there is noinconsistency there. (Supp. p. 5).
R.C. § 102.01 defines the terms "public official or employee" and "public agency"
as follows:
(B) "Public official or employee" means any person who iselected or appointed to an office or is an employee of any publicagency. "Public official or employee" does not include a personelected or appointed to the office of precinct, ward, or districtcommittee member under section 3517.03 of the Revised Code, anypresidential elector, or any delegate to a national convention. "Publicofficial or employee" does not include a person who is a teacher,instructor, professor, or other kind of educator whose position doesnot involve the performance of, or authority to perform, administrativeor supervisory functions. [emphasis added].
(C) "Public agency" means the general assembly, all courts, anydepartment, division, institution, board, commission, authority,bureau or other instrumentality of the state, a county, city, village,or township, the five state retirement systems, or any othergovernmental entity. *** [emphasis added].
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Mr. Kilroy admits that he is a public official or employee. (Supp. p. 5). R.C. §
102.03(A) prohibits a present public official or employee to represent certain persons in
certain situations, as follows:
(1) No present or former public official or employee shall, duringpublic employment or service or for twelve months thereafter,represent a client or act in a representative capacity for any personon any matter in which the public official or employeepersonally participated as a public official or employee throughdecision, approval, disapproval, recommendation, the renderingof advice, investigation, or other substantial exercise ofadministrative discretion. [emphasis added].
***
(5) As used in divisions (A)(1), (2), and (3) of this section, "matter"includes any case, proceeding, application, determination,issue, or question, but does not include the proposal,consideration, or enactment of statutes, rules, ordinances,resolutions, or charter or constitutional amendments. As used indivision (A)(4) of this section, "matter" includes the proposal,consideration, or enactment of statutes, resolutions, or constitutionalamendments. As used in division (A) of this section, "represent"includes any formal or informal appearance before, or any written ororal communication with, any public agency on behalf of any person.[emphasis added].
Mr. Kilroy's personal participation in this matter as a public official or employee
includes entering his appearance as the Auditor's member at the BOR (S.T. Ex. E, Audio
Track 1 at 0:23), presiding over the BOR hearing (S.T. Ex. E, Audio Track 1 at 0:34),
examining the Appellant's witness as a member of the BOR (S.T. Ex. E, Audio Track 1 at
21:27), voting to deny the decrease complaint as a member of the BOR (S.T. Ex. E, Audio
Track 2 at 0:21), and signing the BOR worksheet as the Auditor's member on the BOR
(Supp. p. 73-74).
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The record of the hearing before the BOR clearly establishes that Mr. Kilroy
personally participated in the present matter as a public official or employee through
decision, approval, disapproval, recommendation, or other substantial exercise of
administrative discretion when he served as a member of the BOR. Yet, despite his
personal participation as the Auditor's member of the BOR, Mr. Kilroy then proceeded to
act as legal counsel to represent the Auditor and the BOR on appeal before the BTA.
Further, Mr. Kilroy continues to represent the Auditor and the BOR as legal counsel on
appeal before this Court. R.C. § 102.99(B) states that it may be a misdemeanor to violate
R.C. § 102.03.
The BTA's decisions to overrule the Appellant's objection to Attorney Kilroy's
representation at the BTA and to deny the Appellant's motion to disqualify were
unreasonable, unlawful, and an abuse of discretion. The law is simple-a public official
and/or employee cannot be both a third-party decision maker and later an advocate in the
same matter.4
The BTA did not set forth its rationale for overruling the Appellant's objection to
representation and for denying the Appellant's motion to disqualify. Perhaps the BTA
assumed it has no jurisdiction over the issue and/or that the Ohio Supreme Court has
sole jurisdiction concerning the regulation of the bar. However, the prohibitions and
underlying societal protections set forth in R.C. Chapter 102 cannot be ignored by a public
agency, because doing so damages the public trust in the public agency and the legal
profession.
4The Appellant leaves the applicability of the Ohio Rules of Professional Conduct at Rule1.12(a), the Comment 2 to Rule 1.12 and Rule 1.16(a)(1) in this matter and other contestsbefore the BOR and the BTA to the determination of the Court.
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The Appellant is aware that "disqualification is a drastic measure which should not
be imposed unless absolutely necessary." Royer v. Dillow, 5th Dist. No. 13 CA 71, 2014-
Ohio-53, ¶ 8. However, Mr. Kilroy's participation as a hearing officer on the BOR in this
matter and then as the legal advocate for the BOR and the Auditor on appeal before the
BTA and this Court on the same matter is exactly the conflict of interest that state law
prohibits. Accordingly, the clear and unambiguous actions and admission of Mr. Kilroy
demonstrates his disqualification does not require an evidentiary hearing. In fact, this
Court has "never held that a court must hold an evidentiary hearing before ruling on every
motion for disqualification." Dayton BarAssn. v. Parisi, 131 Ohio St.3d 345, 2012-Ohio-
879, ¶ 15.
Further, the due process rights guaranteed by the United States and Ohio
Constitutions apply in administrative proceedings. Chirila v. Ohio State Chiropractic Bd.
(2001), 145 Ohio App.3d 589, 593, 763 N.E.2d 1192. See U.S. Const. Amend. XIV, Sec.
1; OH. Const. Art. 1, Sec. 16. Procedural due process also embodies the concept of
fundamental fairness. Sohi v. Ohio State Dental Bd. (1998), 130 Ohio App.3d 414, 422,
720 N.E.2d 187. Statutory procedural provisions aside, a requirement to conduct a
"hearing" implies a "fair hearing." State ex rel. Ormet Corp. v. Industrial Com'n of Ohio
(1990), 54 Ohio St.3d 102, 104, 561 N.E.2d 920.
Mr. Kilroy's unlawful representation of the Appellees demonstrates that the
Appellant was denied her constitutional rights to due process as she failed to receive a
fair and impartial hearing before the BOR and the BTA, which also resulted in an unlawful
taking of her property. Accordingly, the decisions of the BTA were unlawful,
unreasonable, and an abuse of discretion.
-15-
Proposition of Law No. III: 5
The Board of Tax Appeals' decision is unreasonable, unlawful, and/oran abuse of discretion, since the BTA reverted to the Auditor's valuedespite competent evidence that negated the validity and reliability ofthe Auditor's value.
The BTA, in error, found that the appraisal reports contained in the record were
not competent evidence. (Appx. p. 6). In fact, both appraisal reports are deemed valid,
as they contain appraiser certifications. See AP Hotels of Illinois, Inc. v. Franklin Cty. Bd.
of Revision, 118 Ohio St.3d 343, 2008-Ohio-2565, ¶12. Further, all relevant evidence is
admissible, and since the BTA admitted the Caldwell appraisal report into evidence, and
the BOR admitted the Malloy appraisal report into evidence, the appraisals are relevant
evidence in the record. Evid.R. 402. (Appx. p. 18). The Caldwell appraisal report is also
effective as of the tax lien date at issue, as required by this Court in Olmsted Falls Village
Assn. v. Cuyahoga Cty. Bd. of Revision, 75 Ohio St.3d 552, 555, 1996-Ohio-456, 664
N.E.2d 922 (1996). Since the appraisal reports are valid and relevant, they are competent
evidence.
Regarding the evidentiary value of the Malloy appraisal report, which was not
dated to the tax lien date at issue, but contained Malloy's certification, this Court in AP
Hotels of Illinois, Inc. v. Franklin Cty. Bd. of Revision, 118 Ohio St.3d 343, 2008-Ohio-
2565 held:
{¶16}*** Although the appraiser did not certify his ultimate opinion ofvalue as of the 2002 tax lien date, his certification that the"statements of fact contained in this report are true andaccurate" did permit the BTA to use the factual information set
This Proposition of Law encompasses the Appellant's Assignments of Error Nos. 5 and6 as set forth in the Appellant's Notice of Appeal.
-16-
forth in the report. Moreover, AP Hotels had submitted similarand additional supportive information to the BOR.
{¶17} This factual information in the appraisal report and theadditional evidence before the BOR constituted an adequatebasis for determining value. [emphasis added].
In the present matter, as in AP Hotels, Mr. Malloy's appraisal report, which was
requested by the BOR, was not dated to the tax lien date, but contained his certification
that "all statements and information in this appraisal report are true and correct." (Supp.
p. 32-33). And just as in AP Hotels, the Appellant submitted similar and additional
supportive information to the BOR in her Owner's Opinion of Value. Accordingly, per AP
Hotels, the factual information in the Malloy appraisal report, plus the Appellant's
additional evidence before the BOR "constituted an adequate basis for the BTA to
determine value." Id. at ¶17.
Further, regarding a certified but unattested appraisal report, this Court found that
information in the appraisal report was "available to the BTA as a body of evidence" to
determine value. Plain Local Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, 130
Ohio St.3d 230, 2011-Ohio-3362, ¶ 29. In the present matter, as in Plain Local Schools,
Ms. Caldwell's appraisal report was unattested (since the BTA denied the motions for
continuances), but contained her certification that "[t]he statements of fact contained in
this report are true and correct." (Supp. p. 25). Accordingly, per Plain Local Schools, the
information in the Caidwell appraisal report was "available to the BTA as a body of
evidence" to determine value.
Taken together, Malloy's appraisal report, the Property Owner's testimony and
evidence provided at the BOR, and Caldwell's appraisal report negate the validity and
-17-
reliability of the Auditor's valuation, which is based solely upon the cost approach. A plain
reading of the Auditor's Property Record Card reveals no consideration of comparable
sales, market analysis, or the income approach by the Auditor. (Supp. p. 38-48). In fact,
the only valuation method utilized by the Auditor was the cost approach, even though the
subject property was thirteen years old as of the tax lien date. (Supp. p. 38-39).
This Court observed the general theory that "[b]ecause cost and market value are
usually more closely related when properties are new, the cost approach is important in
estimating the market value of new or relatively new construction." Colonial Village Ltd.
v. Washington Cty. Bd. of Revision, 114 Ohio St.3d 493, 2007-Ohio-4641, ¶21, citing
Appraisal Institute, The Appraisal of Real Estate (12th ed. 2001) 354.
Appraiser Caldwell in her report states, "[t]he cost approach is not applicable due
to the subject's age. It is most applicable in home (sic) 5 years or younger." (Supp. p.
29). Appraiser Malloy in his report states, "[t]he Cost Approach relates to new
construction and was not applicable. (Supp. p. 29). Accordingly, as the subject property
is thirteen years old as of the tax lien date, and therefore not new or relatively new, the
Auditor's valuation based solely upon the cost approach is not valid or reliable.
At hearing before the BTA, the Appellant argued that the Caldwell appraisal report
that valued the subject property at $450,000, together with the Malloy appraisal report
that valued the subject property at $405,000 establish "that the County's valuation [of
$547,260] is in excess of the fair market value." (Supp. 5; H.T. 12:11-21.) In fact, the
Appellees have presented no affirmative market evidence in support of Auditor's valuation
in contradiction to the Appellant's market evidence. This Court in Dublin City Schools Bd.
of Edn. v. Franklin Cty. Bd. of Revision, 139 Ohio St.3d 193, 2013-Ohio-4543, ¶ 17 held
-18-
that "when a taxpayer presents evidence contrary to the auditor's valuation and no
evidence is offered to support the auditor's valuation, the BTA may not simply reinstate
the auditor's determination."
The record before the BTA contains two certified appraisal reports that affirmatively
negate the validity and reliability of the county's valuation of the property, which was
improperly based upon the cost approach. Since the evidence presented by the taxpayer
Property Owner was competent, and since the Appellees failed to present any evidence
of their own, the BTA failed its statutory duty to determine value from the record by simply
reverting to the Auditor's value. Accordingly, the BTA's decision is unreasonable,
unlawful, and/or an abuse of discretion, since the BTA reverted to the Auditor's value
even though competent evidence negated the validity and reliability of the Auditor's value.
CONCLUSION
Now therefore, in consideration of the above facts, arguments, and propositions of
law, the Appellant requests that the Court vacate the Board of Tax Appeals' decision and
remand this matter back to the Board of Tax Appeals with an order to reschedule the
merit hearing so that Appellant's expert witness can appear and give testimony related to
her opinion of value. In the alternative, the Appellant requests that the Court vacate the
Board of Tax Appeals' decision and remand this matter back to the Board of Tax Appeals
with instructions that it independently determine the value of the subject property from the
evidence in the record. Further, the Appellant requests Mr. Kilroy be disqualified as
counsel for the Appellees.
-19-
Respectfully submitted,
KAREN H. BAUERNSCHMIDT CO., LPA
Karen H. Bauernschmidt #0006774Charles J. Bauersdhmidt #0004648Glen E. Littlejohn #0064932Stephen M. Nowak #00783491370 West 6t" Street, Suite 200Cleveland, Ohio 44113(216) 566-8500(216) 566-0942 - fax
Attorneys for AppellantCynthia M. Musto
-20-
PROOF OF SERVICE
The foregoing Merit Brief of Appellant Cynthia M. Musto was served by regular
U.S. mail, postage prepaid, on this 24t" day of December, 2014 upon:
John P. KilroyLorain County Prosecutors Office225 Court Street, 3rd FloorElyria, OH 44035-5642
Attorney for AppelleesLorain County Board of Revisionand the Lorain County Auditor
Joseph W. TestaTax Commissioner of OhioDepartment of Taxation30 East Broad StreetColumbus, OH 43215
Tax Commissioner of Ohio
Karen H. OBauernschrrtidt #0006774Charles J. Bauersdhmidt #0004648Glen E. Littlejohn #0064932Stephen M. Nowak #0078349
Attorneys for AppellantCyntha M. Musto
MUSTO/09215-12DN9M3390
-21-
IN THE SUPREME COURT OF OHIO
CYNTHIA Nl.MUSTO, CASE NO.
Appellant,
-vs-
LORAIN COUNTY BOARD OFREVISION, THE LORAIN COUNTYAUDITOR AND TAX COMMISSIONEROF OHIO,
Appeal from the Ohio Board of Tax. Appeals
Board of Tax Appeals Case No.2013-4191
Appellees.
NOTICE OF APPEAL OF CYNTHIA M. MUSTO
Karen H. Bauernschmidt #0006774(Counsel of Record)Charles J. Bauemschmidt #0004648Stephen M. Nowak #0078349Glen E. Littlejohn #0064932KAREN H. BAUERNSCHMIDT CO., LPA1370 West 6th Street, Suite 200Cleveland, Ohio 44113T: 216=566-8500 / F: [email protected]
John.P. Kilroy(Counsel of Record)Lorain County Prosecutors Office225 Court Street, 3rd FloorElyria, OH [email protected]: 440-329-5123 / F: 440-329-5430
Attorneys for Appellees Lorain CountyBoard of Revision and the Lorain CountyAuditor
Attorneys for Appellant Cynthia M. Musto
Joseph W. Testa .Tax Commissioner of OhioDepartment of Taxation30 East Broad StreetColumbus; OH 43215T: 614-466-2166 / F: 614-466-6401
Tax Commissioner of Ohio
..,
OCT: 13 L0 14
0111"R€'i OF 0'OU' S 1
S u^vTi,. i1R'T f i;rkrA
CLERK t^^COURT
APPX. 1
NOTICE OF APPEAL OF APPELLANT
Appellant Cynthia M. Musto hereby gives notice of its appeal as of right under R.C.
§ 5717.04 to the Supreme Court of Ohio from a Decision and Order of the Board of Tax
Appeals journalized in Case No. 2013-4191 on September 24, 2014. A true copy of the
Decision and Order of the Board being appealed is attached hereto as Exhibit A and
incorporated herein by reference. Appellant hereby complains of the following errors in the
Decision and Order of the Board of Tax Appeals:
1. The Board of Tax Appeals' decision and order is unreasonable andunlawful, since the Board of Tax Appeals abused its discretion indenying Appellant's motion for continuance to a later date and timedue to an unforeseen issue that arose on the day of the hearing.
2. The Board of Tax Appeals' decision and order is unreasonable andunlawful, since the Board of Tax Appeals abused its discretion indenying Appellant's motion for continuance for two. hours to permitAppellant's expert witness additional time to attend the merit hearing.
3. The Board" of Tax Appeals' decision is unreasonable and unlawful,since the Board of Tax Appeals abused its discretion in denyingAppellant's motion to permit Appellant's expert witness to testify at themerit hearing via telephone on the scheduled date and time.
4. The Board of Tax Appeals' decision and order is unreasonable andunlawful, since the Board of Tax Appeals failed to address and>orexplain its rationale for denying Appellant's motions for a shortcontinuance.
5. The Board of Tax Appeals' decision and order is unreasonable andunlawful, when it reverted to the Auditor's valuation since the PropertyOwner established that the Lorain County Auditor improperly valuedthe subject property via the cost approach.
6. The Board of Tax Appeals' decision and order is unreasonable andunlawful, since the Board of Tax Appeals failed to meet its statutory
APPX. 2
duty to independently determine a value for the subject property giventhe weight of the evidence in the record.
7. The Board of Tax Appeals' decision and order is unreasonable andunlawful, since the Board of Tax Appeals abused its discretion indenying Appellant's motion to disqualify the County Appellee'scounsel's participation at the BTA hearing.
8. The Board of Tax Appeals' decision to allow county Appellee'scounsel to participate in the Board of Tax Appeals hearing isunreasonable and unlawful, since the county Appellees' counselserved as a hearing officer on the Lorain County Board of Revision.Acting as an independent fact finder and subsequently as the Boardof Revision's counsel violates Ohio lavr and undermines the PropertyOwner's right to due process under the Ohio and U.S. Constitutions.
9. Due to the perceived conflict and ethical issue raised the day of theBoard of Tax Appeals hearing, relating to Appellee's counsel being ahearing examiner at the Board of Revision and then the lawyer onappeal, the Board of Tax Appeals unreasonably and unlawfullyproceeded with the Board of Tax Appeals hearing. .
10. The Board of Tax Appeals' decision is unreasonable and unlawfufsince it failed to consider Appelle+ss' counsel's violation of R.C. §102.01 and 102.03 (A).
11. The Board of Tax Appeals' decision and order violates the PropertyOwner's right to due process under the Ohio and U.B. Constitutionsand, as a result, is unreasonable and unlawful.
12.The Board of Tax Appeals' decision results in an unlawful taking ofproperty under the Ohio and U.B. Constitution and, as a result, isunreasonable and unlawful.
Appellant requests that the Court vacate the Board of Tax Appeals' decision and
order the Board of Tax Appeals, to reschedule the merit hearing on the subject property so
that the Property Owner's expert witness can appear before the Board of Tax Appeals and
give testimony related to her opinion of value as set forth in the titnely submitted appraisal
APPX. 3
report. Further,- Appellees' should be ordered to retain new counsel for the BTA hearing
due to the conflict of and violation of R. C. §102.01 and 102.03(A) of their current counsel.
Respectfully submitted,mis
Karen H. Bauernschmidt #0006774 (Counsel of Record)Charles J. Bauernsehrriidt #0004648Stephen M. Nowak #0078349Glen B. Littlejohn #0064932
Attorneys for Appellant
APPX. 4
OFIIO BOARD OF TAX APPEALS
CYNTHIA M. MUSTO, (et. al.), ))))))))))
CASE NO(S). 2013-4191
Appellant(s),
vs.
LORAIN COUNTY BOARD OF REVISION, (et.al.),
Appellee(s).
APPEARANCES:
For the Appellant(s)
For the Appellee(s)
Entered Wednesday, September 24, 2014
(REAL PROPERTY TAX)
DECISION AND ORDER
CYNTHIA 1v1.1V1USTORepresented by:KAREN H. BAUERNSCHMIDTKAREN H. BAUERNSCHMIDT CO., LPA1370 WEST 6TH STREET, SUITE 200CLEVELAND, OH 44113
LORAIN COUNTY BOARD OF REVISIONRepresented by:JOHN P. KILROYASSISTANT PROSECUTING ATTORNEYLORAIN COUNTY225 COURT ST., 3RD FLOORELYRIA, OH 44035
iVlr. Williamson, Mr. 3ohrendt, and Mr. Harbarger concur.
Appellant(s) appeals a decision of the board of revision ("BOR") which deteamined the value of the subjectreal property, parcel number(s) 12-00-014-000-012. This matter is ; now considered upon the notice ofappeal, the transcript certified by the BOR pursuant to R.C. 5717.01, the record of hearing before thisboard, appellant's motion to disqualify the county appellees' attorney and the briefs submitted by theparties. Upon consideration of the arguments advanced by the appellant in the motion, it is hereby denied.
The subject's total true value was initially assessed at $547,260. A decrease complaint was filed with theBOR seeking a reduction in value to $405,000. The BOR issued a decision maintaining the initiallyassessed valuation, which led to the present appeal(s).
When cases are appealed from a board of revision to this board, an appellant must prove the adjustment invalue requested. See, e.g., Shinkle v. Ashtabula Czj^. Bd. of Revision, 135 Ohio St.3d 227, 2013-Ohio-397.As the Supreme Court of Ohio has consistently held, "[t]he best method of determining value, when suchinformation is available, is an actual sale of such property between one who is willing to sell but notcompelled to do so and one who is willing to buy but not compelled to do so. *** However, suchinformation is not usuaLty available, and thus an appraisal becomes necessary." State ex rel. Park Invest.Co. v. Bd of Tax fdppeals (1954), 175 Ohio St. 410. See, also, LTC I'r®perttes, Irrc. v. Licking Cty. Bd. of
E?CFtiBITA
APPX. 5
Revision, 133 Ohio St.3d 111, 2012-Ohio-3930, ¶28. The court has also held that "°[w]hile an owner maytestify as to the value of his or her property, there is no requirement that the finder of fact accept that valueas the true value of the property." WJJK Investments, Inc. v. Licking Cty. Bd. of Revision (1996), 76 OhioSt.3d 29, 32. Rather, this board is charged with the responsibility of deteranining value based upon evidenceproperly contained within the record which must be found to be both competent and probative, StrongsvilleBd. of Ed'n. v. Cuyahoga Ct.y. Bd of Revision (1997), 77 Ohio St.3 d 402, 405; Cardinal Fed. S. & L. Assn.v. Ba" ofRevision (1975), 44 Ohio St.2d 13, paragraph two of the syllabus.
In this instance, there exists no evidence the subject property "recently" transferred through a qualifyingsale and thus, the appellant was required, but failed, to provide a competent appraisal of the subjectproperty, attested to by a qualified expert, for the tax lien date in issue. We note that appellant submitted anappraisal report to the BOR, however, upon review, it appears the appraisal was done for financingpurposes, contains an effective date prior to the tax lien date at issue and was not attested to by the author.txle further note that appellant also provided this board Nvith an appraisal report, which was for the tax liendate in issue, but was not attested to by the author,
The Supreme Court of Ohio has repeatedly cited to the importance of an expert's opinion of valuationbeing "as of' the tax lien date in issue when determining the value of real property for purposes of advalorem taxation. OXmstedFadls Village Assn. v. Cuvahoga Cty. Bd. ofRevision (1996), 75 Ohio St.3d 552.In addition, this board has consistently held that when an expert was unavailable to authenticate anappraisal report, provide professional eredentials; discuss methodologies utilized, or becross-examined/questioned by the opposing party's attorney or this board's attomey examiner, "[a]n expert`sopinion of value *** is of little help to the trier of fact if the expert does not explain the basis for theopinion." Freshwater v. Belmont Cty, Bd oflZevision (1997), 80 Ohio St.3d 26, 30. See, also, Evenson v.Erie Cty. Bd. of Revision (Apr. 12, 2002), BTA No. 2001-V-770, unreported. As such, this board cannotrely on either appraisal. report as evidence of value. See Freshwater, supra; Olmsted Falls Village Assn,supra; Evenson, supra.
Accordingly, based upon our review of the record, we find the bases cited insufficient to support theclaimed adjustment to value. See, e.g., Simmons v. Cuyahoga Cty. Bd. of Revision (1998), 81 Ohio St.3d47, 49 ("Where the BTA rejects the evidence presented to it as not being competent and probative, or notcredible, and there is no evidence from which the BTA can independently determine value, it may approvethe board of revision's valuation, without the board of revision's presenting any evidence."),
It is therefore the order of this board that the. true and taxable values of the subject property, as of 3anuary1, 2012, were as follows:
PARCEL NUMBER
12-00-014-000-012
TRUE VALUE
$547,260
TAXABLE VALUE
$191,540
It is the order of the Board of Tax Appeals that the subject property be assessed in conformity with thisdecision and order.
EXHIBIT A
APPX. 6
BOARD OF TAX APPEALS
dtESU.LT OF VOTE ^^ YES ^ 1^0 s
Ik^r. VVflliarrasoII
Mr. Johrendt ,.
iMr. Hatbarger
^ ^ ^r._...._._._.,.
I hereby certify the foregoing to be a trueand complete copy of the action taken bythe Board of Tax Appeals of the State ofOhio and entered upon its journal this day,with respect to the captioned matter.
A.J. Groeber, Board Secretary
EXHIBIT A
APPX. 7
PROOF OF SERVICE
! hereby certify that a copy of this Notice of Appeal was sent this 10"' day of
October, 2014 by certified mail, return receipt requested to:
John P. KilroyLorain County Prosecutors Office225 Court Street, 3rd FloorElyria, OH 44035-5642
Attorneya for AppeileesLorain County Board of Revision and the Lorain County Auditor
Joseph W. TestaTax Commissioner of OhioDepartment of Taxation30 East Broad StreetColumbus, OH 43215
Tax Commissioner of Ohio
Karen H. Sauernschmidt #0006774 ®unsel of Record)Charles J. Bauernschmidt #0004648Stephen M. Nowak #0078349Glen E. Littfejohn #0064932
Attorneys for Appellant
APPX. 8
Ohio Statutes
Title 1. STATE GOVERNMENT
Chapter 102. PUBLIC OFFICERS - ETHICS
Current through the 130th General ftssembly
§ 102.01. Public ofticers - ethics definitions
As used in this chapter:
(A)
"Compensation" means money, thing of value, orfinancial benefit. "Compensation" does not includereimbursement for actual and necessary expensesincurred in the performance of official duties.
(B)
"Public official or employee" means any person who is
elected or appointed to an of5ce or is an employee of any
public agency. "Public official or employee" does not
include a person elected or appointed to the office of
precinct, ward, or district committee member under
section 3517.03 of the Revised Code, any presidential
elector, or any delegate to a national convention. "Public
official or employee" does not include a person who is a
teacher, instructor, professor, or other kind of educator
whose position does not involve the performance of, or
authority to perform, administrative or supervisory
fimctions.
(C)
"Public agency" means the general assembly, all courts,
any department, division, institution, board, commission,
authority, bureau or other instrumentality of the state, a
county, city, village, or township, the five state retirement
systems, or any other governmental entity. "Public
agency" does not include a department, division,
institution, board, conunission, authority, or other
instrumentality of the state or a county, municipal
corporation, township, or other govenmrnental entity that
functions exclusively for cultural, educational, historical,
humanitarian, advisory, or research purposes; that does
not expend more than ten thousand dollars per calendar
year, excluding salaries and wages of employees; and
whose members are uncompensated. "Public agency"
does not include the nonprofit corporation fortned under
section 187.01 of the Revised Code.
(D)
"Immediate family" means a spouse residing in theperson's household and any dependent child.
(E)
"Income" includes gross income as defined and used in
the "Internal Revenue Code of 1986," 100 Stat. 2085, 26
U.S.C. I , as amended, interest and dividends on
obligations or securities of any state or of any politica!
subdivision or authority of any state or political
subdivision, and interest or dividends on obiigations of
any authority, commission, or instrnmentality of theUnited States.
(F)
Except as otherwise provided in division (A) of section102.08 of the Revised Code, "appropriate ethicscomniission" means:
(1)
For matters relating to members of the general assembly,employees of the general assembly, employees of thelegislative service commission, candidates for the officeof member of the general assembly, and public membersappointed to the Ohio constitutional moderaizationcommission under section 103.63 of the Revised Code,the joint legislative ethics committee;
(2)
For matters relating to judicial officers and employees,
and candidates for judicial office, the board ofconitnissioners on grievances and discipline of thesupreme court;
(3)
For matters relating to all other persons, the Ohio ethicscommission.
(O)
"Anything of value" has the same meaning as providedin section 1.03 of the Revised Code and includes, but isnot limited to, a contribution as defined in section3517.01 of the Revised Code.
(H)
"Honorarium" means any payment made in consideration
for any speech given, article published, or attendance at
any public or private conference, convention, meeting,
social event, meal, or similar gathering. "Honorarium"
does not include ceremonial gifts or awards that have
insignificant monetary value; unsolicited gifts of nominal
value or trivial items of informational value; or eamed
income from any person, other than a legislative agent,
for personal services that are customarily provided in
connection with the practice of a bona fide business, if
that business initially began before the public official or
employee conducting that business was elected or
appointed to the public official's or employee's office or
APPX. 9
position of employment.
(1)
"Employer" means any person who, directly or
indirectly, engages an executive agency lobbyist or
legislative agent.
(j)
"Executive agency decision," "executive agency
lobbyist," and "executive agency lobbying activity" have
the same meanings as in section 121.60 of the Revised
Code.
(K)
"Legislation," "legislative agent," "financial transaction,"and "actively advocate" have the same meanings as insection 101.70 of the Revised Code.
(L)
"Expenditure" has the sacne meaning as in section
101.70 of the Revised Code when used in relation to
activities of a legislative agent, and the same meaning as
in section 121.60 of the Revised Code when used in
relation to activities of an executive agency lobbyist.
Cite as R.C. § 102.01
History. Amended by 129th General AssemblyFileNo.94, SB 208, § L, eff. 7/3/2012.
Amended by 129th General AssemblyFile No.1, HB 1,§1, eff. 2/18/2011.
Effective Date: 03-02-1994; 05-18-2005
Related Legis[ative Provision: See 129th GeneralAssemblyFtle No.94, SB 208, §8
See 129th General AssemblyFlle No.94, SB 208, §7
See 129th General.4ssemblyFile No, 94, SB 208, §6
See 129th General.4ssemblyFile No.94, SB 208, §5
See 129th General rlssemblyFile No.94, SB 208, §4
See 129th General AssemblyFile No.94, SB 208, §3
APPX. 10
Ohio Statutes
Title 1. STATE GOVERNMENT
Chapter 102. PUBLIC OFFICERS - ETHICS
Current through the 130th General Assembly
§ 102.03. Representation by present or former publicofficial or employee prohibited
(A)
(1)
No present or former public official or employee shall,
during public employment or service or for twelve
months thereafter, represent a client or act in a
representative capacity for any person on any matter in
which the public official or employee personally
participated as a public official or employee through
decision, approval, disapproval, recommendation, the
rendering of advice, investigation, or other substantial
exercise of administrative discretion.
(2)
For twenty-four months after the conclusion of service,no former commissioner or attomey examiner of thepublic utilities comtnission shall represent a public utility,as defined in section 4905.02 of the Revised Code, or actin a representative capacity on behalf of such a utilitybefore any state board, commission, or agency.
(3)
For twenty-four months after the conclusion of
employment or service, no former public official or
employee who personally participated as a public official
or employee through decision, approval, disapproval,
recommendation, the rendering of advice, the
development or adoption of solid waste management
plans, investigation, inspection, or other substantial
exercise of administrative discretion under Chapter 343.
or 3734. of the Revised Code shall represent a person
who is the owner or operator of a facility, as defined in
section 3734.01 of the Revised Code, or who is an
applicant for a permit or license for a facility under that
chapter, on any matter in which the public official or
employee personally participated as a public official or
employee.
(4)
For a period of one year after the conclusion of
employment or service as a member or employee of the
general assembly, no former member or employee of the
general assembly shall represent, or act in a
representative capacity for, any person on any matter
before the general assembly, any committee of the
general assembly, or the controlling board. Division
(A)(4) of this section does not apply to or affect a person
who separates from service with the general assembly on
or before December 31, 1995. As used in division (A)(4)of this section "person" does not include any state agency
or political subdivision of the state.
(5)
As used in divisions (A)(1), (2), and (3) of this section,"matter" includes any case, proceeding, application,determination, issue, or question, but does not include theproposal, consideration, or enactment of statutes, rules,ordinances, resolutions, or charter or constitutionalamendments. As used in division (A)(4) of this section,"matter" includes the proposal, consideration, orenactment of statutes, resolutions, or constitutionalamendments. As used in division (A) of this section,"represent" includes any formal or informal appearancebefore, or any written or oral communication with, anypublic agency on behalf of any person.
(6)
Nothing contained in division (A) of this section shallprohibit, during such period, a former public official oremployee from being retained or employed to represent,assist, or act in a representative capacity for the publicagency by which the public ot3'icial or employee wasemployed or on which the public official or employeeserved.
(7)
Division (A) of this section shall not be construed to
prohibit the performance of ministerial functions,
including, but not limited to, the filing or amendment of
tax returns, applications for permits and licenses,
incorporation papers, and other similar documents.
(8)
Division (A) of this section does not prohibit a
nonelected public official or employee of a state agency,
as defined in section 1.60 of the Revised Code, from
becoming a public official or employee of another state
agcncy. Division (A) of this section does not prohibit
such an official or employee from representing or acting
in a representative capacity for the official's or
employee's new state agency on any matter in which the
public official or employee personally participated as a
public official or employee at the official's or employee`s
former state agency. However, no public official or
employee of a state agency shall, during public
employment or for twelve months thereafter, represent or
act in a representative capacity for the off'icial's or
employee's new state agency on any audit or
APPX. 11
investigation pertaining to the official's or employee's
new state agency in which the public official or employee
personally participated at the official's or employee's
former state agency through decision, approval,
disapproval, recommendation, the rendering of advice,
investigation, or other substantial exercise of
administrative discretion.
(9)
Division (A) of this section does not prohibit a
nonelected public official or employee of a political
subdivision from becoming a public official or employee
of a different department, division, agency, office, or unit
of the same political subdivision. Division (A) of this
section does not prohibit such an official or employee
from representing or acting in a representative capacity
for the official's or employee's new department, division,
agency, office, or unit on any matter in which the public
official or employee personally participated as a public
official or employee at the official's or employee's former
department, division, agency, office, or unit of the same
political subdivision. As used in this division, "political
subdivision" means a county, township, municipal
corporation, or any other body corporate and politic that
is responsible for govemment activities in a geographic
area smaller than that of the state.
(10)
No present or former Ohio casino control commissionofficial shall, during public service or for two yearsthereafter, represent a client, be employed orcompensated by a person regulated by the commission, oract in a representative capacity for any person on anymatter before or conceming the commission.
No present or former commission employee shall, duringpublic employment or for two years thereafter, representa client or act in a representative capacity on any matterin which the employee personally participated as acommission employee through decision, approval,disapproval, recommendation, the rendering of advice,investigation, or other substantial exercise ofadministrative discretion.
(B)
No present or former public official or employee shall
disclose or use, without appropriate authorization, any
information acquired by the public official or employee
in the course of the public official's or employee's official
duties that is confidential because of statutory provisions,
or that has been clearly designated to the public official
or employee as confidential when that confidential
designation is warranted because of the status of the
proceedings or the circumstances under which the
information was received and preserving its
confidentiality is necessary to the proper conduct of
government business.
(C)
No public official or employee shall participate within
the scope of duties as a public official or employee,
except through ministerial functions as defined in
division (A) of this section, in any license or rate-making
proceeding that directly affects the Iieense or rates of any
person, partnership, uvst, business trust, corporation, or
association in which the public official or employee or
immediate family owns or controls more than five per
cent. No public official or employee shall participate
within the scope of duties as a public official or
employee, except through ministerial functions as defined
in division (A) of this section, in any license or
rate-making proceeding that directly affects the license or
rates of any person to whom the public official or
employee or immediate family, or a partnership, trust,
business trust, corporation, or association of which the
public official or employee or the public official's or
employee's immediate fanzily owns or controls more than
five per cent, has sold goods or services totaling more
than one thousand dollars during the preceding year,
unless the public official or employee has filed a written
statement acknowledging that sale with the clerk or
secretary of the public agency and the statement is
entered in any public record of the agency's proceedings.
This division shall not be construed to require the
disclosure of clients of attomeys or persons licensed
under section 4732.12 of the Revised Code, or patients of
persons certified under section 4731.14 of the Revised
Code.
(D)
No public official or employee shall use or authorize theuse of the authority or influence of office or employmentto secure anvthing of value or the promise or offer ofanything of value that is of such a character as tomanifest a substantial and improper influence upon thepublic official or employee with respect to that person'sduties.
(E)
No public official or employee shall solicit or accept
anything of value that is of such a character as to
manifest a substantial and improper influence upon the
public official or employee with respect to that person's
duties.
(F)
No person shall promise or give to a public official oremployee anything of vaiue that is of such a character asto manifest a substantial and improper influence upon thepublic official or employee with respect to that person'sduties.
(G)
In the absence of bribery or another offense under the
APPX. 12
Revised Code or a purpose to defraud, contributions
made to a campaign committee, political party, legislative
campaign fund, political action committee, or political
contributing entity on behalf of an elected public officer
or other public official or employee who seeks elective
office shall be considered to accrue ordinarily to the
public official or employee for the purposes of divisions
(D), (E), and (F) of this section.
As used in this division, "contributions," "campaigncommittee," "political party," "legislative campaignfund," "political action committee," and "politicalcontributing entity" have the same meanings as in section3517.01 of the Revised Code.
(H)
(1)
No public official or employee, except for the president
or other chief administrative officer of or a member of a
board of trustees of a state institution of higher education
as defined in section 3345.011 of the Revised Code, who
is required to file a financial disclosure statement under
section 102.02 of the Revised Code shall solicit or accept,
and no person shall give to that public official or
employee, an honorarium. Except as provided in division
(H)(2) of this section, this division and divisions (D), (E),
and (F) of this section do not prohibit a public official or
employee who is required to file a financial disclosure
statement under section 102.02 of the Revised Code from
accepting and do not prohibit a person from giving to that
public official or employee the payment of actual travel
expenses, including any expenses incurred in connection
with the travel for lodging, and meals, food, and
beverages provided to the public official or employee at a
meeting at which the public official or employee
participates in a panel, seminar, or speaking engagement
or provided to the public official or employee at a
meeting or convention of a national organization to which
any state agency, including, but not limited to, any state
legislative agency or state institution of higher education
as defined in section 3345.011 of the Revised Code, pays
membership dues. Except as provided in division (H)(2)
of this section, this division and divisions (D), (E), and
(F) of this section do not prohibit a public official or
employee who is not required to file a fmancial
disclosure statement under section 102.02 of the Revised
Code from accepting and do not prohibit a person from
promising or giving to that public official or employee an
honorarium or the payment of travel, meal, and lodging
expenses if the honorarium, expenses, or both were paid
in recognition of demonstrable business, professional, or
esthetic interests of the public official or employee that
exist apart from public office or employment, including,
but not limited to, such a demonstrable interest in public
speaking and were not paid by any person or other entity,
or by any representative or association of those persons
or entities, that is regulated by, doing business with, or
seeldng to do business with the department, division,
institution, board, commission, authority, bureau, or other
instrumentality of the governmental entity with which the
public official or employee serves.
(2)
No person who is a member of the board of a stateretirement system, a state retirement system investmentofficer, or an employee of a state retirement systemwhose position involves substantial and material exerciseof discretion in the investment of retirement systetn fundsshall solicit or accept, and no person shall give to thatboard member, officer, or employee, payment of actualtravel expenses, including expenses incurred with thetravel for lodging, meals, food, and beverages.
(1)
A public official or employee may accept travel, meals,and lodging or expenses or reimbursement of expensesfor travel, meals, and lodging in connection withconferences, seminars, and similar events related toofficial duties if the travel, meals, and lodging, expenses,or reimbursement is not of such a character as to manifesta substantial and improper influence upon the publicofficial or employee with respect to that person's duties.The house of representatives and senate, in their code ofethics, and the Ohio ethics commission, under section111.15 of the Revised Code, may adopt rules settingstandards and conditions for the furnishing andacceptance of such travel, meals, and lodging, expenses,or reimbursement.
A person who acts in compliance with this division and
any applicable rules adopted under it, or any applicable,
similar sules adopted by the supreme court governing
judicial officers and employees, does not violate division
(D), (E), or (F) of this section. This division does not
preclude any person from seeking an advisory opinion
from the appropriate ethics commission under section
102.08 of the Revised Code.
(J)
For purposes of divisions (D), (E), and (F) of this
section, the membership of a public official or employee
in an organization shall not be considered, in and of itself,
to be of such a character as to manifest a substantial and
improper influence on the public official or employee
with respect to that person's duties. As used in this
division, "organization" means a church or a religious,
benevolent, fraternal, or professional organization that is
tax exempt under subsection 501(a) and described in
subsection 501(c)(3), (4), (8), (10), or (19) of the
"Interual Revenue Code of 1986:" This division does not
apply to a public official or employee who is an
employee of an organization, serves as a trustee, director,
or officer of an organization, or otherwise holds a
fiduciary relationship with an organization. This division
does not allow a public official or employee who is a
member of an organization to participate, formally or
APPX. 13
informally, in deliberations, discussions, or voting on a
matter or to use the public official's or employee's official
position with regard to the interests of the organization on
the matter if the public official or employee has assumed
a particular responsibility in the organization with respect
to the matter or if the matter would affect that person's
personal, pecuniary interests.
(K)
It is not a violation of this section for a prosecuting
attorney to appoint assistants and employees in
accordance with division (B) of section 309.06 and
section 2921.421 of the Revised Code, for a chief legal
officer of a municipal corporation or an official
designated as prosecutor in a municipal corporation to
appoint assistants and employees in accordance with
sections 733.621 and 2921.421 of the Revised Code, for a
township law director appointed under section 504.15 of
the Revised Code to appoint assistants and employees in
accordance with sections 504.151 and 2921.421 of the
Revised Code, or for a coroner to appoint assistants and
employees in accordance with division (B) of section
313.05 of the Revised Code.
As used in this division, "chief legal officer" has the samemeaning as in section 733.621 of the Revised Code.
(L)
No present public official or employee with a casino
gaming regulatory function shall indirectly invest, by
way of an entity the public official or employee has an
ownership interest or control, in, or directly invest in a
casino operator, management company, holding
company, casino facility, or gaming-related vendor. No
present public official or employee with a casino gaming
regulatory function shall directly or indirectly have a
financial interest in, have an ownership interest in, be the
creditor or hold a debt instrument issued by, or have an
interest in a contractual or service relationship with a
casino operator, management company, holding
company, casino facility, or gaming-related vendor. This
section does not prohibit or Iimit permitted passive
investing by the public official or employee.
As used in this division, "passive investing" means
investment by the public official or employee by means
of a mutual fund in which the public official or employee
has no control of the investments or investment decisions.
"Casino operator," "holding company," "management
company," "casino facility," and "gaming-related vendor"
have the same meanings as in section 3772.01 of theRevised Code.
(M)
A member of the Ohio casino control commission, the
executive director of the commission, or an employee of
the commission shall not:
(1)
Accept anything of value, including but not limited to a
gift, gratuity, emolument, or employment from a casino
operator, management company, or other person subject
to the jurisdiction of the commission, or from an officer,
attomey, agent, or employee of a casino operator,
management company, or other person subject to the
jurisdiction of the commission;
(2)
Solicit, suggest, request, or recomanend, directly or
indirectly, to a casino operator, management company, or
other person subject to the jurisdiction of the
commission, or to an offlcer, attorney, agent, or employee
of a casino opcrator, management company, or other
person subject to the jurisdiction of the commission, the
appointment of a person to an office, place, position, or
employment;
(3)
Participate in casino gaming or any other amusement oractivity at a casino facility in this state or at an affiliategaming facility of a licensed casino operator, whereverlocated.
In addition to the penalty provided in section 102.99 ofthe Revised Code, whoever violates division (Iv1)(1), (2),or (3) of this section forfeits the individual's office oremployment.
Cite as R.C. § 102.03
History. Amended by 130th General Assembly File No.51, HB 83, §1, eff. 3/20/2014.
Amended by 129th General AssemblyFile No.129, SB314, §1, eff. 9/28/2012.
Amended by 128th General AssemblyFile No.38, HB519, §1, eff. 9/10/2010.
Whoever violates division (C) of section 102.02 ordivision (C) of section 102.031 o€the Revised Code isguilty of a misdemeanor of the fourth degree.
(B)
Whoever violates division (D) of section 102.02 or
section 102.021 , 102.03 , 102.04 , or 102.07 of the
Revised Code is guilty of a misdemeanor of the firstdegree.
Cite as R.C. § 102.99
History. Effective Date: 03-02-1994; 05-18-2005
APPX. 15
CONSTITUTION OF UNITED STATES all such debts, obligations and claims shall be held illegaland void.
AMENDMENTS
Current through 2012SECTION. S. The Congress shall have power to enforce,by appropriate legislation, the provisions of this article.
Amendment XIV. Rights Guaranteed: Privileges andImmunities of Citizenship, Due Process, and EqualProtection
SECTION. 1. All persons bom or naturalized in the
United States and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they
reside. No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive any person
of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal
protection of the laws.
SECTION. 2. Representatives shall be apportioned
among the several States according to their respective
numbers, counting the whole number of persons in each
State, excluding Indians not taxed. But when the right to
vote at any election for the choice of electors for
President and Vice President of the United States,
Representatives in Congress, the Executive and Judicial
officers of a State, or the members of the Legislature
thereof, is denied to any of the male inhabitants of such
State, being twenty-one years of age, and citizens of the
United States, or in any way abridged, except for
participation in rebellion, or other crime, the basis of
representation therein shall be reduced in the proportion
which the number of such male citizens shall bear to the
whole number of male citizens twenty-one years of age in
such State.
SECTION. 3. No person shall be a Senator orRepresentative in Congress, or elector of President andVice President, or hold any office, civil or military, underthe United States, or under any State, who, havingpreviously taken an oath, as a member of Congress, or asan officer of the United States, or as a member of anyState legislature, or as an executive or judicial officer ofany State, to support the Constitution of the UnitedStates, shall have engaged in insurrection or rebellionagainst the same, or given aid or comfort to the enemiesthereof. But Congress may by a vote of two-thirds ofeach House, remove such disability.
SECTION. 4. The validity of the public debt of theUnited States, authorized by law, including debtsincurred for payment of pensions and bounties forservices in suppressing insurrection or rebellion, shall notbe questioned. But neither the United States nor any Stateshall assume or pay any debt or obligation incurred in aidof insurrection or rebellion against the United States, orany claim for the loss or emancipation of any slave; but
APPX. 16
Ohio Constitution
Arkicle I. Bill of Rights
Current through the November 4, 2014 election
§ 46. Redress in courts
All courts shall be open, and every person, for an injurydone him in his land, goods, person, or reputation, shalihave remedy by due course of law, and shall have justiceadministered without denial or delay.
Suits may be brought against the state, in such courts andin such manner, as may be provided by law.
APPX. 17
Ohio Rules
RULES OF EVIDENCE
Article 4. RELEVANCY AND ITS LIMITS
As amended through July 1, 2014
Rule 402. Relevant Evidence Generally Admissible;
Irrelevant Evidence Inadmissible
All relevant evidence is admissible, except as otherwise
provided by the Constitution of the United States, by the
Constitution of the State of Ohio, by statute enacted by
the General Assembly not in conflict with a rule of the
Supreme Court of Ohio, by these rules, or by other rules
prescribed by the Supreme Court of Ohio. Evidence
which is not relevant is not admissible.
Iiistory. Effective: July 1, 1980.
APPX. 18
Ohio Statutes
Title 57. TAXATION
Chapter 5715. BOARDS OF REVISION;EQUALIZATION OF ASSESSl41ENTS
Current through the 130th General Assembly
§ 5715.19. Complaint against valuation or assessment- determination of complaint - tender of tax -determination of common level of assessment
(A)
As used in this section, "member" has the same meaningas in section 1705.01 of the Revised Code.
(1)
Subject to division (A)(2) of this section, a complaintagainst any of the following determinations for thecurrent tax year shall be filed with the county auditor onor before the thirty-first day of March of the ensuing taxyear or the date of elosing of the collection for the firsthalf of real and public utility property taxes for thecurrent tax year, whichever is later:
(a)
Any classification made under section 5713.041 of theRevised Code;
(b)Any determination made under section 5713.32 or
5713.35 of the Revised Code;
(c)
Any recoupment charge levied under section 5713.35 ofthe Revised Code;
(d)
The determination of the total valuation or assessment ofany parcel that appears on the tax list, except parcelsassessed by the tax commissioner pursuant to section5727.06 of the Revised Code;
(e)
The determination of the total valuation of any parcel
that appears on the agricultural land tax list, except
parcels assessed by the tax commissioner pursuant to
section 5727.06 of the Revised Code;
(f)
Any determination made under division (A) of section
319.302 of the Revised Code.
If such a complaint is filed by mail or certified mail, thedate of the United States postmark placed on theenvelope or sender's receipt by the postal service shall betreated as the date of filing. A private meter postmatk onan envelope is not a valid postmark for purposes ofestablishing the filing date.
Any person owning taxable real property in the county orin a taxing district with territory in the county; such aperson's spouse; an individual who is retained by such aperson and who holds a designation from a professionalassessment organization, such as the institute forprofessionals in taxation, the national council of propertytaxation, or the international association of assessingofficers; a public accountant who holds a permit undersection 4701.10 of the Revised Code, a general orresidential real estate appraiser licensed or certified underChapter 4763. of the Revised Code, or a real estate brokerlicensed under Chapter 4735. of the Revised Code, whois retained by such a person; if the person is a firm,company, association, partnership, limited liabilitycompany, or corporation, an officer, a salaried employee,a partner, or a member of that person; if the person is atrust, a trustee of the trust; the board of countycommissioners; the prosecuting attorney or treasurer ofthe county; the board of township trustees of anytownship with territory within the county; the board ofeducation of any school district with any territory in thecounty; or the mayor or legislative authority of anymunicipal corporation with any territory in the countymay file such a complaint regarding any suchdetermination affecting any real property in the county,except that a person owning taxable real property inanother county nxay file such a complaint only withregard to any such determination affecting real propertyin the county that ►s located in the same taxing district asthat person's real property is located. The county auditorshall present to the county board of revision allcomplaints filed with the auditor.
(2)
As used in division (A)(2) of this section, "interimperiod" means, for each county, the tax year to whichsection 5715.24 of the Revised Code applies and eachsubsequent tax year until the tax year in which thatsection applies again.
No person, board, or officer sball file a complaint against
the valuation or assessment of any parcel that appears on
the tax list if it filed a complaint against the valuation or
assessment of that parcel for any prior tax year in the
same interim period, unless the person, board, or officer
alleges that the valuation or assessment should be
changed due to one or more of the following
circumstances that occurred after the tax lien date for the
APPX. 19
tax year for which the prior complaint was filed and thatthe circumstances were not taken into consideration withrespect to the prior complaint:
(a)
The property was sold in an arm's length transaction, asdescribed in section 5713.03 of the Revised Code;
(b)
The property lost value due to some casualty;
(c)
Substantial improvement was added to the property;
(d)
An increase or decrease of at least fifteen per cent in theproperty's occupancy has had a substantial economicimpact on the property.
(3)
If a county board of revision, the board of tax appeals, orany court dismisses a complaint filed under this sectionor section 5715,13 of the Revised Code for the reasonthat the act of filing the complaint was the unauthorizedpractice of law or the person filing the complaint wasengaged in the unauthorized practice of law, the partyaffected by a decrease in valuation or the party's agent, orthe person owning taxable real property in the county orin a taxing district with territory in the county, may refilethe complaint, notwithstanding division (A)(2) of thissection.
(4)
Notwithstanding division (A)(2) of this section, a person,board, or officer may file a complaint against thevaluation or assessment of any parcel that appears on thetax list if it filed a complaint against the valuation orassessment of that parcel for any prior tax year in thesame interim period if the person, board, or officerwithdrew the complaint before the complaint was heardby the board.
(B)
Within thirty days after the last date such complaints
may be filed, the auditor shall give notice of each
complaint in which the stated amount of overvaluation,
undervaluation, discriminatory valuation, illegal
valuation, or incorreet determination is at least seventeen
thousand five hundred dollars to each property owner
whose property is the subject of the complaint, if the
complaint was not filed by the owner or the owner's
spouse, and to each board of education whose school
district may be affected by the complaint. Within thirty
days after receiving such notice, a board of education; a
property owner, the owner's spouse; an individual who is
retained by such an owner and who holds a designationfrom a professional assessment organization, such as theinstitute for professionals in taxation, the national councilof property taxation, or the intemational association ofassessing officers; a public accountant who holds apernut under section 4701.10 of the Revised Code, ageneral or residential real estate appraiser licensed orcertified under Chapter 4763. of the Revised Code, or areal estate broker licensed under Chapter 4735, of theRevised Code, who is retained by such a person; or, if theproperty owner is a firm, company, association,partnership, limited liability company, corporation, ortrust, an officer, a salaried employee, a partner, amember, or trustee of that property owner, may file acomplaint in support of or objecting to the amount ofalleged overvaluation, undervaluation, discriminatoryvaluation, illegal valuation, or incorrect determinationstated in a previously filed complaint or objecting to thecurrent valuation. Upon the filing of a complaint underthis division, the board of education or the propertyowner shall be made a party to the action.
(C)
Each board of revision shall notify any complainant andalso the property owner, if the property owner's address isknown, when a complaint is filed by one other than theproperty owner, by certified mail, not less than ten daysprior to the hearing, of the time and place the same wiUbe heard. The board of revision shall hear and render itsdecision on a complaint within ninety days after the filingthereof with the board, except that if a complaint is filedwithin thirty days after receiving notice from the auditoras provided in division (B) of this section, the board shallhear and render its decision within ninety days after suchfiling,
(D)
The determination of any such complaint shall relate
back to the date when the lien for taxes or recoupment
charges for the current year attached or the date as of
which liability for such year was deternvned. Liability for
taxes and recoupment charges for such year and each
succeeding year until the complaint is finally determined
and for any penalty and interest for nonpayment thereof
within the time required by law shall be based upon the
deterntination, valuation, or assessment as finally
detemiined. Each complaint shall state the amount of
determination upon which the complaint is based. The
treasurer shall accept any amount tendered astaxes or
recoupment charge upon property conceming which a
complaint is then pending, computed upon the claimed
valuation as set forth in the complaint. If a complaint
filed under this section for the current year is not
determined by the board within the time prescribed for
such determination, the complaint and any proceedings in
relation thereto shall bc continued by the board as a valid
! APPX. 20
complaint for any ensuing year until such complaint is
finally determined by the board or upon any appeal from
a decision of the board. In such case, the original
complaint shall continue in effect without further filing
by the original taxpayer, the original taxpayer's assignee,
or any other person or entity authorized to file a
complaint under this section.
(E)
If a taxpayer files a complaint as to the classification,valuation, assessment, or any detenuination affecting thetaxpayer's own property and tenders less than the fullamount of taxes or recoupment charges as finallydetermined, an interest charge shall accrue as follows:
(1)
If the amount finally determined is less than the amount
billed but more than the amount tendered, the taxpayer
shall pay interest at the rate per annum prescribed by
section 5703.47 of the Revised Code, computed from the
date that the taxes were due on the difference between the
amount finally determined and the amount tendered. This
interest charge shall be in lieu of any penalty or interest
charge under section 323.121 of the Revised Code unless
the taxpayer failed to file a complaint and tender an
amount as taxes or recoupment charges within the time
required by this section, in which case section 323.121 of
the Revised Code applies.
(2)
If the amount of taxes finally determined is equal to orgreater than the amount billed and more than the amounttendered, the taxpayer shall pay interest at the rateprescribed by section 5703.47 of the Revised Code fromthe date the taxes were due on the difference between theaniount finally determined and the amount tendered, suchinterest to be in lieu of any interest charge but in additionto any penalty prescribed by section 323.121 of theRevised Code.
(F)
Upon request of a complainant, the tax commissionershall determine the common level of assessment of realproperty in the county for the year stated in the requestthat is not valued under section 5713.31 of the RevisedCode, which common level of assessment shall beexpressed as a percentage of true value and the commonlevel of assessment of lands valued under such section,which common level of assessment shall also beexpressed as a percentage of the current agricultural usevalue of such lands. Such determination shall be made onthe basis of the most recent available sales ratio studies ofthe commissioner and such other factual data as tliecommissioner deems pertinent.
(G)
A complainant shall provide to the board of revision allinformation or evidence within the complainant'sknowledge or possession that affects the real propertythat is the subject of the complaint. A complainant whofails to provide such information or evidence is precludedfrom introducing it on appeal to the board of tax appealsor the court of common pleas, except that the board of taxappeals or court may admit and consider the evidence ifthe complainant shows good cause for the complainant'sfailure to provide the information or evidence to theboard of revision.
(H)
In case of the pendency of any proceeding in court based
upon an alleged excessive, discriminatory, or illegal
valuation or incorrect classification or determination, the
taxpayer may tender to the treasurer an amount as taxes
upon property computed upon the claimed valuation as
set forth in the complaint to the court. The treasurer may
accept the tender. If the tender is not accepted, no penalty
shall be assessed because of the nonpayment of the full
taxes assessed.
Cite as R.C. § 5715.19
History. Amended by 129th General AssemblyFileNo.141, HB 509, § 1, eff. 9l28/2012.
