[Cite as State ex rel. Associated Builders & Contrs. of Cent. Ohio v. Franklin Cty. Bd. of
Commrs., 125 Ohio St.3d 112, 2010-Ohio-1199.]




  THE STATE EX REL. ASSOCIATED BUILDERS & CONTRACTORS OF CENTRAL
           OHIO ET AL., APPELLANTS, v. FRANKLIN COUNTY BOARD OF
                        COMMISSIONERS ET AL., APPELLEES.
 [Cite as State ex rel. Associated Builders & Contrs. of Cent. Ohio v. Franklin
           Cty. Bd. of Commrs., 125 Ohio St.3d 112, 2010-Ohio-1199.]
Labor — Prevailing wage — R.C. Chapter 4115 — Policy of board of county
        commissioners is not equivalent to municipal ordinance or similar
        provision having force of law — Preemption analysis does not apply —
        Board abused its discretion in applying bid-evaluation criterion to bidder
        for public works contract.
     (No. 2008-1478 — Submitted June 2, 2009 — Decided March 25, 2010.)
     APPEAL from the Court of Appeals for Franklin County, No. 08AP-301,
                                   2008-Ohio-2870.
                                __________________
                              SYLLABUS OF THE COURT
1. A policy of a board of county commissioners for evaluating bids on public
        contracts is not the equivalent of a municipal ordinance or similar
        provision having the force of law. Thus, the policy is not a local law
        within the meaning of Section 3, Article XVIII of the Ohio Constitution,
        and a preemption analysis does not apply.
2. When a public authority adopts a policy establishing criteria for evaluating the
        eligibility of bidders on public works projects, the public authority must
        apply its evaluation criteria in a manner consistent with the exercise of
        sound discretion.
                                __________________
                             SUPREME COURT OF OHIO




       CUPP, J.
       {¶ 1} This appeal concerns the process used by the Franklin County
Board of Commissioners to determine that appellant The Painting Company was
not the best bidder for a public works contract despite being the lowest bidder.
We hold that preemption under R.C. Chapter 4115, the framework providing
rights and remedies for private contractors and subcontractors engaged in the
construction of public improvements in this state, is not applicable to the policy
the board established for evaluating bids on public contracts. Therefore, no
preemption analysis is required.
       {¶ 2} We also hold that a public authority, although it may create a
policy establishing criteria by which it will evaluate bids for public works
contracts to determine the lowest and best bidder, is obligated to apply its bid
evaluation criteria by exercising its sound discretion. In this case, we find that the
public authority failed to exercise sound discretion with respect to the manner in
which it applied its bid evaluation criteria to evaluate a bid submitted for a public
works contract. Therefore, we reverse the court of appeals’ judgment and remand
for further proceedings.
                       I. Factual and Procedural Background
       {¶ 3} In October 2007, the Franklin County Board of Commissioners
solicited bids for painting work in connection with the construction of the new
county-owned Huntington Park baseball stadium in Franklin County, Ohio. The
board received two bids for painting work in the new facility. The lowest and
best bid would receive the contract for the Huntington Park project.
       {¶ 4} In 2002, the board had adopted by resolution a set of criteria for
evaluating bids for a public works contract. According to the resolution, the
purpose of these criteria was to “ensure that the County’s contractors are
compliant with the law[,] financially stable and capable of executing construction




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contracts in a competent and professional manner.”1 These criteria are referred to
as the Qualitative Contracting Standards by the board. The board reaffirmed its
commitment to these criteria in 2006 when it announced that the criteria would be
incorporated into the invitation to bid for the Huntington Park project.
         {¶ 5} The lowest bidder for the contract was The Painting Company.
The Painting Company is a nonunion shop. The one other bidder was a union
shop contractor whose bid was $46,000 more than The Painting Company’s bid.
After reviewing the submitted bids, the board formally rejected The Painting
Company’s bid for the Huntington Park project. Specifically, the board stated
that “The Painting Company does not satisfy Section 8.2.4.15 of the [invitation to
bid] documents.” The board went on to state that “[t]he attached information
demonstrates that The Painting Company has been found by the State of Ohio to
have violated the State’s prevailing wage laws more than three times in a two-
year period within the last ten years; therefore, The Painting Company is not
eligible for award of this contract.”
         {¶ 6} The board’s supporting materials included copies of 14 complaints
filed with the Ohio Department of Commerce alleging prevailing-wage violations
against The Painting Company during the specified time period of Section
8.2.4.15. All of the complaints had been investigated by the department, and
several investigations concluded that any prevailing-wage violation either was not

1. {¶ a} These criteria included such considerations as:
   { ¶ b} “3. Bidder certifies that Bidder will employ supervisory personnel on this project that
have three (3) or more years in the specific trade and/or maintain the appropriate state license, if
any.
   { ¶ c} “* * *
   { ¶ d} “6. Bidder certifies that Bidder has implemented an OSHA compliant Safety Program
and will provide evidence of such upon request.
   { ¶ e} “* * *
   { ¶ f} “10. Bidder certifies that Bidder’s construction license has not been revoked in any state.
   { ¶ g} “* * *
   { ¶ h} “15. Bidder certifies that Bidder does not have an Experience Modification Rating of
greater than 3.0 (a penalty rated employer) with respect to the Bureau of Workers’ Compensation
risk assessment rating.”




                                                 3
                                 SUPREME COURT OF OHIO




intentional or resulted in no liability.            Another group of investigations were
resolved through a settlement agreement between The Painting Company and the
director of the department.          In that agreement, The Painting Company was
permitted to expressly disclaim, without any qualification by the department, any
liability or wrongdoing in connection with the prevailing-wage laws.
        {¶ 7} Subsequent to the board’s action, The Painting Company requested
and received a formal bid-protest meeting, at which the board affirmed its
rejection of The Painting Company’s bid.
        {¶ 8} Thereafter, The Painting Company appealed from the board’s
decision. Although questioning the board’s wisdom of disqualifying contractors
who may have superficial and unintentional violations of the prevailing-wage
laws, both the trial and appellate courts determined that the board had the
authority to set relevant criteria to evaluate bids on county public works projects.
Both courts also held that the board did not abuse its discretion in rejecting The
Painting Company’s bid because the company failed to meet the county’s
criterion of compliance with the state’s prevailing-wage laws.
        {¶ 9} Subsequently, The Painting Company, joined by appellant
Associated Builders & Contractors of Central Ohio trade association (collectively,
appellants), appealed to this court.2 We accepted review under our discretionary
jurisdiction. 120 Ohio St.3d 1415, 2008-Ohio-6166, 897 N.E.2d 651.
                                    II. Statutory Provisions
        {¶ 10} Ohio’s prevailing-wage laws are contained in R.C. Chapter 4115.
In general, these provisions require contractors and subcontractors for public
works projects to pay laborers and mechanics the “prevailing wage” in the locality
where the project is to be performed.                See generally R.C. 4115.03 through


2. Associated Builders & Contractors of Central Ohio is a not-for-profit trade association made up
of contractors, subcontractors, material suppliers, and related entities that provide construction
services within Ohio.




                                                4
                              January Term, 2010




4115.21; J.A. Croson Co. v. J.A. Guy, Inc. (1998), 81 Ohio St.3d 346, 349, 691
N.E.2d 655. "‘[T]he primary purpose of the prevailing wage law is to support the
integrity of the collective bargaining process by preventing the undercutting of
employee wages in the private construction sector.’" Id. at 349, 691 N.E.2d 655,
citing State ex rel. Evans v. Moore (1982), 69 Ohio St.2d 88, 91, 23 O.O.3d 145,
431 N.E.2d 311.
       {¶ 11} The prevailing rate of wages for a particular class of work is
determined by the director of the Ohio Department of Commerce.              R.C.
4115.04(A)(1). The director is also charged with enforcing the prevailing-wage
laws. R.C. 4115.10(E). When a complaint is filed with the director alleging that
a contractor or subcontractor has violated prevailing-wage laws, an investigation
ensues. R.C. 4115.13(A). At the conclusion of the investigation, the director
makes a recommendation as to whether a violation occurred and whether that
violation was intentional. R.C. 4115.13(B).
       {¶ 12} If the director recommends that a violation was intentional, the
director gives written notice of that recommendation to the violator and advises
that person or entity that an appeal of the recommendation may be filed. R.C.
4115.13(B). The notice and hearing procedures are set forth in R.C. 4115.13. A
recommendation that a contractor or subcontractor intentionally violated the
prevailing-wage laws becomes a formal finding of fact only if the contractor or
subcontractor does not appeal the recommendation or, if after a hearing before an
examiner, the director adopts the examiner’s findings of fact and recommendation
that the violation was intentional.        R.C. 4115.13(B).    A contractor or
subcontractor intentionally violates prevailing-wage laws when it intentionally
fails to submit payroll records to the contracting public authority, knowingly
submits false payroll records, intentionally misclassifies employees for the
purpose of reducing wages, intentionally fails to comply with the apprentice-to-




                                       5
                              SUPREME COURT OF OHIO




skilled-worker ratio, or intentionally allows a barred contractor to perform work
on a public works project. R.C. 4115.13(H)(1) through (6).
       {¶ 13} In certain situations, a failure to comply with prevailing-wage laws
can be excused. If the director makes a finding that an underpayment was the
result of a contractor or subcontractor’s misinterpretation of the statutes or an
erroneous preparation of the payroll documents, no further enforcement
proceedings take place provided restitution of the underpaid amount is made.
R.C. 4115.13(C).
       {¶ 14} However, if no such situation is presented, once the director’s
initial recommendation is reduced to a finding, the director has the power to
collect underpayments from the contractor or subcontractor in the form of
restitution, along with a penalty. R.C. 4115.10(A) and (B). The director files
with the secretary of state the name of the contractor or subcontractor who has
been prosecuted for and convicted of intentionally violating the prevailing-wage
laws. R.C 4115.133(A). The name shall not be filed until the applicable appeal
period has expired or the court makes an entry of final judgment in favor of the
director in any appeal. Id.
       {¶ 15} The consequence of the filing with the secretary of state is that the
contractor or subcontractor is barred from contracting with any public authority
for any public works project for a one-year period.          R.C. 4115.13(D) and
4115.133(B). After the first violation, if a contractor or subcontractor again
intentionally violates the prevailing-wage laws within a five-year period, the
debarment period is extended to three years.        R.C. 4115.133(B).      A public
authority may not award a contract for any public works project to any contractor
or subcontractor whose name appears on the list. R.C. 4115.133(C). Criminal
penalties also apply if the director determines that there was a violation of certain
provisions of the prevailing-wage laws. R.C. 4115.99(B).
                               III. Preemption Analysis




                                         6
                                January Term, 2010




       {¶ 16} In support of the proposition of law accepted by this court,
appellants assert that the manner in which the board interpreted and applied its
bid-evaluation criterion contained in Section 8.2.4.15 imposes a “de facto”
debarment and does so in a more expansive manner than the prevailing-wage
laws. Appellants claim that the board’s evaluation criterion is invalid because it
conflicts with, and is therefore preempted by, the state’s prevailing-wage statutes.
       {¶ 17} We find that preemption does not apply to this matter. The starting
point for a preemption analysis is the language of the Home Rule Amendment,
Section 3, Article XVIII of the Ohio Constitution: “Municipalities shall have
authority to exercise all powers of local self-government and to adopt and enforce
within their limits such local police, sanitary and other similar regulations, as are
not in conflict with general laws.” The test for whether a conflict exists between
an ordinance and a statute “is whether the ordinance permits or licenses that
which the statute prohibits and vice versa.” In re Decertification of Eastlake
(1981), 66 Ohio St.2d 363, 368, 20 O.O.3d 327, 422 N.E.2d 598.
       {¶ 18} This concept of home rule, however, applies expressly only to
municipalities, not to county governments. A county government possesses only
those powers that are authorized by statute, and it generally otherwise lacks the
authority to exercise powers of local self-government, except for those limited
instances in which county home rule has been adopted pursuant to R.C. Chapter
302. See Section 1, Article X, Ohio Constitution; Schaffer v. Franklin Cty.
Veterans Memorial Bd. of Trustees (1960), 171 Ohio St. 228, 230-231, 12 O.O.2d
343, 168 N.E.2d 547; Blacker v. Wiethe (1968), 16 Ohio St.2d 65, 45 O.O.2d 367,
242 N.E.2d 655.
       {¶ 19} Moreover, the evaluation criterion appellants claim conflicts with
the prevailing-wage statutes is not a municipal ordinance or similar municipal
provision having the force of law. Rather, Section 8.2.4.15 is a part of a policy
adopted by a county board for its use in evaluating the eligibility of a bid



                                         7
                             SUPREME COURT OF OHIO




submitted for a public works contract.          As a result, there is no local law
conflicting with the state prevailing-wage statutes within the meaning of Section
3, Article XVIII, and no preemption analysis is required or applicable.
       {¶ 20} Because there is no preemption question presented, we decline the
invitation to engage in such an analysis.
                         IV. Exercise-of-Discretion Analysis
       {¶ 21} Although we reject appellants’ characterization of this issue as a
matter of preemption, appellants’ position is supported by an alternate rationale.
On the record, we find that the board failed to exercise sound discretion with
respect to the manner in which it applied its evaluation criteria to the bid
submitted by The Painting Company. Not only did the board misapply one of its
evaluation criteria to determine that The Painting Company was not the lowest
and best bidder for the Huntington Park contract, but it relied on its
misapplication of that criterion to exclude consideration of all other evaluation
criteria contained in its policy, thereby improperly disqualifying The Painting
Company’s bid from consideration for the Huntington Park contract.
       {¶ 22} In determining the best bidder for a local public works contract, a
public authority has considerable latitude in making its decision. Cedar Bay
Constr., Inc. v. Fremont (1990), 50 Ohio St.3d 19, 21-22, 552 N.E.2d 202. As a
part of this broad discretion, a public authority may consider all relevant factors in
its evaluation of which submitted bid is best. See R.C. 9.312(A); Rein Constr.
Co. v. Trumbull Cty. Bd. of Commrs. (2000), 138 Ohio App.3d 622, 629, 741
N.E.2d 979; Prime Contrs., Inc. v. Girard (1995), 101 Ohio App.3d 249, 258, 655
N.E.2d 411. This discretion is not vested in the courts, and the courts cannot
interfere unless it clearly appears that the public authority is abusing the discretion
so vested in it. Cedar Bay, 50 Ohio St.3d at 21, 552 N.E.2d 202.
       {¶ 23} To aid in the evaluation process, a public authority may establish
evaluation criteria that supplement the statutory criteria for reviewing a bid. A




                                            8
                                January Term, 2010




bidder’s history of compliance with prevailing-wage laws could be among the
criteria for a public authority to consider. In fact, to the extent a public authority
is required to comply with the prevailing-wage laws, it may be error for a public
authority to fail to consider a bidder’s record in this regard. See, e.g., R.C.
4115.133(C) (no public authority shall award a public works contract to a
contractor whose name appears on the secretary of state’s list of contractors who
have violated certain prevailing-wage laws).
       {¶ 24} Nevertheless, once a public authority has adopted supplemental
evaluation criteria, it is then obligated to follow and apply those criteria within its
permitted zone of discretion. The presumption in contract-bidding litigation is
that the public authority performed its duties in a regular and lawful manner.
Cedar Bay, 50 Ohio St.3d at 21, 552 N.E.2d 202. The wide discretion vested in
the public authority is not abused when the public authority exercises will,
judgment, or reason in its award of a contract to a bidder, but this discretion is
neither “unlimited nor unbridled.” Dayton ex rel. Scandrick v. McGee (1981), 67
Ohio St.2d 356, 360, 21 O.O.3d 225, 423 N.E.2d 1095.                  Accordingly, a
disappointed bidder must present clear and convincing evidence to demonstrate
that the public authority abused its discretion in awarding a contract. State ex rel.
Shafer v. Ohio Turnpike Comm. (1953), 159 Ohio St. 581, 590, 50 O.O. 465, 113
N.E.2d 14; Cleveland Constr., Inc. v. Ohio Dept. of Adm. Servs., Gen. Servs. Adm.
(1997), 121 Ohio App.3d 372, 384, 700 N.E.2d 54.
       {¶ 25} In this case, The Painting Company has demonstrated with clear
and convincing evidence that the board abused its discretion by misapplying one
of its evaluation criteria, Section 8.2.4.15, to determine that the bid submitted by
The Painting Company was not the lowest and best bid for the Huntington Park
contract. Section 8.2.4.15 requires the lowest responsive bidder to provide all
information that “the Project Representative deems appropriate to the




                                          9
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consideration of factors showing that such Bidder’s bid is best, including without
limitation the following:
          {¶ 26} “* * *
          {¶ 27} “8.2.4.15. Information that the Bidder has not been debarred from
public contracts or found by the state (after all appeals) to have violated
prevailing wage laws more than three times in a two-year period in the last ten
years.”
          {¶ 28} The question is whether The Painting Company has been
“debarred from public contracts or found by the state (after all appeals) to have
violated prevailing wage laws” within the specified time period.
          {¶ 29} Our analysis begins with the observation that the term “violated”
as contained in Section 8.2.4.15 is imprecise. Neither the board’s contracting-
standards criteria nor the Project Manual provides a definition of “violation.” Nor
is there a definition of “violation” in the prevailing-wage statutes of R.C. Chapter
4115, or any indication of whether “violation” refers only to intentional violations
or to any violation no matter how unintended or inconsequential. Even the chief
of the Wage and Hour Bureau opined that the “quest for a definition of ‘violation’
cannot be secured through a review of [R.C. Chapter 4115] in and of itself. Some
would argue that the mere fact that back wages are owed constitutes a violation.
However, under Section 4115.13(C), that is not necessarily accurate.” Although
there is no formal definition of the term “violation” in either the county policy or
state statutes, we conclude that the plain sense of the term “violat[ion],” as used in
Section 8.2.4.15, refers to the situation in which the director makes a formal
finding that a contractor or subcontractor intentionally violated the prevailing-
wage laws, and all appeals are exhausted.
          {¶ 30} The process for ascertaining whether a contractor or subcontractor
has violated prevailing-wage laws supports this meaning of the term.              For
instance, when the director completes an investigation, a recommendation is




                                         10
                               January Term, 2010




issued. R.C. 4115.13(B). This recommendation is the first step in prosecuting
potential violations; a recommendation alone does not give rise to penalties or
equate to a finding of intentional misconduct. That recommendation may lead, in
various ways, to a decision by the director that a violation has occurred, either
intentional or unintentional. R.C. 4115.13(B), (C), (D), and (G). The director
will then determine whether a sanction is appropriate. R.C. 4115.13(D) and
4115.133.     A finding that a wage underpayment has occurred does not
automatically equate to a finding of an intentional prevailing-wage violation. For
instance, the wage underpayment could be excused upon restitution under R.C.
4115.13(C).
       {¶ 31} Nor do settlement agreements that resolve prevailing-wage
disputes between a contractor and the director constitute evidence of a violation.
The settlement agreement represents a negotiated conclusion to a dispute.
Because the dispute was resolved through negotiation and consequently removed
from the statutory decision-making process, no administrative or judicial authority
ever made a final determination that any prevailing-wage laws were violated, as
contemplated in Section 8.2.4.15 by the phrase “found by the state (after all
appeals).” Cf. State ex rel. Dillard Dept. Stores v. Ryan, 122 Ohio St.3d 241,
2009-Ohio-2683, 910 N.E.2d 438, syllabus (a voluntary dismissal with prejudice
is not a judicial determination that workers’ compensation payments were made
to an employee in error, when no court has entered a judgment to that effect).
       {¶ 32} In this case, the board applied Section 8.2.4.15 to mean that any
noncompliance with prevailing-wage laws by the bidder during the applicable
time period was the equivalent of a prevailing-wage violation. The board never
considered that under R.C. 4115.13(C), wage underpayments resulting from mere
mistake are excused from prosecution as a violation.
       {¶ 33} The board’s rejection of The Painting Company’s bid is not
consistent with the term “violated” as used in Section 8.2.4.15. Section 8.2.4.15,



                                        11
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for instance, does not require disclosure of information pertaining to instances of
noncompliance with the prevailing-wage laws. Rather, it requires disclosure of
information when the bidder “violated” those laws. Moreover, the disclosure
requirement is further limited to violations found by the state “after all appeals.”
There is no evidence that The Painting Company has violated the prevailing-wage
laws within the meaning of Section 8.2.4.15 or the prevailing-wage statutes
because after all appeals, the director never found under R.C. 4115.13 that The
Painting Company violated the prevailing-wage laws. The Painting Company is
not included on the secretary of state’s listing of contractors and subcontractors
who are debarred from public works projects, as set forth in R.C. 4115.13 and
4115.133.
        {¶ 34} Moreover, in the settlement agreement, The Painting Company
was permitted to expressly disclaim, without any contradiction by the department,
any liability or wrongdoing in connection with wage underpayments.3                          This
situation is analogous to that in Dillard, because without debarment or a finding
by the state (after all appeals) of a prevailing-wage violation, the settlement
agreement cannot evidence any such violations within the meaning of the


3. { ¶ a} The settlement agreement provides:
   { ¶ b} “WHEREAS, The Painting Company disputes any liability for the underpayment of
prevailing wages * * *; and
   { ¶ c} “***
   { ¶ d} “WHEREAS, [the Department of] Commerce and The Painting Company have
successfully negotiated a settlement of the dispute without any acknowledgement of liability by
The Painting Company;
   { ¶ e} “NOW THEREFORE, * * * the Department of Commerce, on behalf of the State of
Ohio, hereby releases and forever discharges The Painting Company * * * from any and all * * *
penalties * * * arising out of or in any way concerning, directly or indirectly, claims against The
Painting Company for the alleged underpayment of prevailing wages by The Painting Company
[on specified projects].
   { ¶ f} “***
   { ¶ g} “It is understood and agreed by [the Department of] Commerce that this release
constitutes a compromise settlement of the disputed claim or claims, and that payment by The
Painting Company of the above-stated settlement is not to be construed as and does not constitute
an admission of liability or wrongdoing on the part of The Painting Company.”




                                                12
                                January Term, 2010




prevailing-wage statutes for purposes of Section 8.2.4.15. See id., 122 Ohio St.3d
241, 2009-Ohio-2683, 910 N.E.2d 438.
       {¶ 35} Based on the foregoing, the board misapplied Section 8.2.4.15 of
the evaluation criteria to the bid submitted by The Painting Company.
       {¶ 36} The Painting Company has also demonstrated with clear and
convincing evidence that the board failed to exercise sound discretion because in
erroneously disqualifying The Painting Company’s bid, it relied on a mistaken
application of a single criterion without considering any of the remaining criteria.
       {¶ 37} The Painting Company was the lowest bidder on the project by a
significant amount.    The Painting Company also has a record of successful
performance in projects similar to the Huntington Park project.            And the
Huntington Park construction manager and the board’s own representative
recommended that The Painting Company receive the contract.
       {¶ 38} Nevertheless, these recommendations were apparently dismissed
by the board in determining that The Painting Company was ineligible to bid on
the Huntington Park project. There is no indication that the board relied on any of
the other evaluation criteria to find that The Painting Company was not the best
bidder for the Huntington Park project. The trial court also found it notable that
the board failed to provide any evidence justifying its decision to reject the
recommendations of its own construction manager and representative.
       {¶ 39} From all appearances, the board relied on its misapplication of
Section 8.2.4.15 as a sole gate-keeping criterion rather than considering its
evaluation criteria as a whole when it disqualified the bid submitted by The
Painting Company for the Huntington Park project. This departure constituted an
abuse of discretion.
                                    V. Conclusion
       {¶ 40} Upon review of the matter at issue herein, we hold that a policy of
a board of county commissioners for evaluating bids on public contracts is not the



                                         13
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equivalent of a municipal ordinance or other municipal provision having the force
of law. Thus, the policy is not a local law within the meaning of Section 3,
Article XVIII of the Ohio Constitution, and a preemption analysis does not apply.
          {¶ 41} Moreover, we hold that when a public authority adopts a policy
establishing criteria for evaluating the eligibility of bidders on public works
projects, the public authority must apply its evaluation criteria in a manner
consistent with the exercise of sound discretion.
          {¶ 42} Based on the foregoing, the judgment of the court of appeals is
reversed, and the cause is remanded to the trial court for further proceedings
consistent with this opinion.
                                                                  Judgment reversed
                                                                and cause remanded.
          MOYER, C.J., and LUNDBERG STRATTON, O’CONNOR, and O’DONNELL, JJ.,
concur.
          PFEIFER and LANZINGER, JJ., dissent.
                                 __________________
          PFEIFER, J., dissenting.
                                     I. The Merits
          {¶ 43} The majority opinion correctly explains that public authorities have
broad discretion in evaluating submitted bids and that we "cannot interfere unless
it clearly appears that the public authority is abusing [its] discretion." Maj. op. at
¶ 22, citing Cedar Bay Constr., Inc. v. Fremont (1990), 50 Ohio St.3d 19, 21, 552
N.E.2d 202. But when the majority opinion discusses how the Franklin County
Board of Commissioners wielded its discretion, it does not address the widely
known abuse-of-discretion standard, which states that "[t]he term 'abuse of
discretion' connotes more than an error of law or of judgment; it implies that the
court's attitude is unreasonable, arbitrary or unconscionable." State v. Adams




                                          14
                                January Term, 2010




(1980), 62 Ohio St.2d 151, 157, 16 O.O.3d 169, 404 N.E.2d 144, citing Steiner v.
Custer (1940), 137 Ohio St. 448, 451, 19 O.O. 148, 31 N.E.2d 855.
       {¶ 44} In this case, the majority opinion is reversing the considered
judgments of the Franklin County Board of Commissioners, the trial judge, and
the judges of the Tenth District Court of Appeals. In doing so, it invents a
definition of "violation" in the prevailing-wage context without recourse to case
law, statutes, administrative codes, or even a dictionary. And it substitutes its
definition of "violation" for the definition used by the Franklin County Board of
Commissioners without explaining how the commissioners abused their
discretion. Even if I accept the majority opinion's definition of "violation," and I
concede that it is as good a definition as any other, I cannot conclude that in
adopting a different definition, the commissioners acted unreasonably, arbitrarily,
or unconscionably.
       {¶ 45} Based on the record and briefs, I conclude that the Franklin County
Board of Commissioners adopted a definition of "violation" that was designed to
allow them to reject bids from contractors with a history of prevailing-wage-
related problems. There is nothing unreasonable, arbitrary, or unconscionable
about a public authority promoting a policy that encourages contractors to comply
with the spirit as well as the letter of the prevailing-wage law.
                                  II. Jurisdiction
       {¶ 46} The appellants' memorandum in support of jurisdiction contained
five propositions of law, including the following:
       {¶ 47} "Proposition of Law No. 3: Appellees' de facto debarment rule is
preempted by R.C. Chapter 4115, a comprehensive scheme balancing the
competing public interests in prevailing wage compliance and competition for
public contracts.
       {¶ 48} "Proposition of Law No. 4: The settlement agreements and court
proceedings cannot legally be considered as establishing a violation of law,



                                          15
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because such [a] finding would be contrary to both the language of the
agreements and the public policy favoring resolution of disputes through
mediation and settlement.
        {¶ 49} "Proposition of Law No. 5: Because the state has not ‘found’ that
[The Painting Company] violated the prevailing wage law within the last ten
years, Appellees abused their discretion because either the Standards are void for
vagueness or the Commissioners' interpretation constituted an unannounced bid
criterion."
        {¶ 50} This court accepted jurisdiction over Proposition of Law III only.
State ex rel. Associated Builders & Contrs. of Cent. Ohio v. Franklin Cty. Bd. of
Commrs., 120 Ohio St.3d 1415, 2008-Ohio-6166, 897 N.E.2d 651. I dissented.
Id.
        {¶ 51} As I have explained in the past, "I disagree with this court's
practice of picking and choosing, within a case, the issues that we are willing to
review. If a case is worthy of review, in the interests of providing justice to the
parties and because, until we see the entire record, it is exceedingly difficult to
ascertain the interplay of various issues, all appealed issues should be before us.
Whether we address each issue at that point is, of course, within our considered
discretion." Meyer v. United Parcel Serv., Inc., 122 Ohio St.3d 104, 2009-Ohio-
2463, 909 N.E.2d 106, ¶ 60 (Pfeifer, J., dissenting).
        {¶ 52} Apparently a majority of this court now agrees with my dissent in
Meyer because, even though this court accepted jurisdiction over Proposition of
Law III only, the majority opinion also addresses Propositions of Law IV and V.
I do not disagree with that approach; in fact, I applaud it. But wouldn't it be better
for parties and their attorneys if this court accepted jurisdiction without
limitation? The current practice is confusing. Attorneys don't know whether they
should argue issues that aren't before us; based on this case, they should.




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Attorneys also don't know whether they can safely ignore issues that we have told
them are not before us; based on this case, they shouldn't.
                                  III. Conclusion
       {¶ 53} I conclude that the Franklin County Board of Commissioners did
not abuse its discretion. I would affirm the decision of the court of appeals. I
dissent.
       LANZINGER, J., concurs in the foregoing opinion.
                               __________________
       The Copley Law Firm, L.L.C., Michael F. Copley, Mark E. Landers,
Douglas M. Beard, and Kenley S. Maddux; and The Mason Law Firm Co.,
L.P.A., Ronald L. Mason, and Aaron T. Tulencik, for appellants.
       Ron O’Brien, Franklin County Prosecuting Attorney, Nick A. Soulas Jr.,
First Assistant Prosecuting Attorney, and Anthony E. Palmer, Assistant
Prosecuting Attorney, for appellee.
       Benesch, Friedlander, Coplan & Aronoff, L.L.P., N. Victor Goodman, and
Mark D. Tucker, urging affirmance for amici curiae Ohio State Building &
Construction Trades      Council and Columbus/Central Ohio Building &
Construction Trades Council.
       Bricker & Eckler, L.L.P., and Luther L. Liggett Jr., urging affirmance for
amici curiae National Electrical Contractors’ Association, Ohio Conference, and
Mechanical Contractors Association of Northwestern Ohio.
                            ______________________




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