[Cite as State ex rel. Teamsters Local Union No. 436 v. Cuyahoga Cty. Bd. of Commrs., 132
Ohio St.3d 47, 2012-Ohio-1861.]




 THE STATE EX REL. TEAMSTERS LOCAL UNION NO. 436 ET AL., APPELLEES, v.
BOARD OF COUNTY COMMISSIONERS, CUYAHOGA COUNTY, OHIO, APPELLANT.
 [Cite as State ex rel. Teamsters Local Union No. 436 v. Cuyahoga Cty. Bd. of
                   Commrs., 132 Ohio St.3d 47, 2012-Ohio-1861.]
Appeals from decisions of political subdivisions—R.C. Chapter 2506—Exclusion
        of one department from public employer’s early-retirement plan—
        Taxpayer’s action—Standing—Declaratory judgment—Exhaustion of
        administrative remedies.
     (No. 2011-0569—Submitted December 6, 2011—Decided May 1, 2012.)
       APPEAL from the Court of Appeals for Cuyahoga County, No. 94703,
                         194 Ohio App.3d 258, 2011-Ohio-820.
                                   __________________
        MCGEE BROWN, J.
        {¶ 1} Appellant, the Board of County Commissioners of Cuyahoga
County, appeals from a declaratory judgment in favor of appellees, Teamsters
Local Union No. 436 and union member Kevin Lesh (collectively, “the union”),
holding that the commissioners’ Employee Retirement Incentive Plan (“ERIP”)
was in violation of R.C. 145.297.1



1. R.C. 145.297(B) provides:

              An employing unit may establish a retirement incentive plan for its eligible
        employees. In the case of a county or county agency, decisions on whether to
        establish a retirement incentive plan for any employees other than employees of
        a board of alcohol, drug addiction, and mental health services or county board of
        developmental disabilities and on the terms of the plan shall be made by the
        board of county commissioners.

R.C. 145.297(A) provides:

              As used in this section, “employing unit” means:
                                 SUPREME COURT OF OHIO




       {¶ 2} For the reasons set forth, we reverse the judgment of the court of
appeals.
                                         Background
       {¶ 3} On November 6, 2008, the commissioners passed a resolution
establishing an early-retirement incentive program, enrollment for which would
be open from January 15, 2009, to January 14, 2010. The resolution made the
plan available to all employees of the commissioners, except for the Sanitary
Engineering Division.
       {¶ 4} The union represents a bargaining unit of employees who work for
the Sanitary Engineering Division of the commissioners.                       Pursuant to R.C.
6117.01(C), the commissioners supervise the Sanitary Engineering Division, set
the compensation of its employees, and approve collective-bargaining agreements
with the union. A few days before passage of the resolution, some employees of
the Sanitary Engineering Division, none of whom were union members and none
of whom are parties to this appeal, had filed a grievance on behalf of all Sanitary
Engineering Division employees regarding eligibility for the retirement plan. The
county administrator, James McCafferty, held a hearing on the grievance on
January 9, 2009. Approximately 15 Sanitary Engineering Division employees, at
least four of whom were union members, attended the hearing and were given an

             (1) A municipal corporation, agency of a municipal corporation designated
       by the legislative authority, park district, conservancy district, sanitary district,
       health district, township, department of a township designated by the board of
       township trustees, metropolitan housing authority, public library, county law
       library, union cemetery, joint hospital, or other political subdivision or unit of
       local government.
             ***
             (3)(a) With respect to employees of a board of alcohol, drug addiction, and
       mental health services, that board.
             (b) With respect to employees of a county board of developmental
       disabilities, that board.
             (c) With respect to other county employees, the county or any county
       agency designated by the board of county commissioners.
             (4) In the case of an employee whose employing unit is in question, the
       employing unit is the unit through whose payroll the employee is paid.




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                               January Term, 2012




opportunity to be heard.     On January 20, 2009, the administrator issued a
decision, determining that the Sanitary Engineering Division employees were not
permitted to participate in the retirement plan. The administrator mailed the
decision to each employee who had attended the hearing, including the four
identified union members, Kevin Lesh, Jerry Tharp, Richard Dryer, and Thomas
Spracale.   None of the employees attempted to appeal the administrator’s
decision.
       {¶ 5} Almost one year later, on December 22, 2009, the union sent a
taxpayer demand letter to the Cuyahoga County prosecutor. The union urged the
prosecutor to file an action to compel the commissioners to extend the retirement
plan to the Sanitary Engineering Division employees, or to recover the funds used
for the retirement plan due to its allegedly unlawful exclusion of the Sanitary
Engineering Division. The prosecutor declined to initiate the requested action.
       {¶ 6} On December 30, 2009, the union filed a taxpayer action against
the commissioners, on behalf of all union-member Sanitary Engineering Division
employees, seeking injunctive and declaratory relief.     Specifically, the union
sought a declaration that the commissioners violated R.C. 145.297 when they
authorized the ERIP for all board employees excluding the Sanitary Engineering
Division and sought an order compelling the commissioners to include the
Sanitary Engineering Division in the ERIP. The union sought similar relief in a
separate cause of action for declaratory judgment and in a request for a writ of
mandamus in its January 7, 2010 amended complaint. In addition to denying the
merits of the union’s claims, the commissioners asserted that the union did not
have standing to bring its taxpayer action and that it was otherwise barred from
requesting equitable remedies because the Sanitary Engineering Division
employees had failed to exhaust their administrative remedies.
       {¶ 7} Noting that the union had brought the present action mere days
before the ERIP was due to terminate, the trial court denied the union’s request



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for injunctive relief and its action in mandamus, in an entry issued on January 22,
2010. However, the trial court did grant the union’s prayer for declaratory relief
and held that the commissioners’ failure to include the Sanitary Engineering
Division as part of the “employing unit” that was eligible for the ERIP did not
comply with the definition of “employing unit” in R.C. 145.297 and that the
commissioners were therefore in violation of the statute.
       {¶ 8} The commissioners appealed to the Eighth District Court of
Appeals, which, in a split decision, affirmed the trial court’s judgment. State ex
rel. Teamsters Local Union No. 436 v. Cuyahoga Cty. Bd. of Commrs., 194 Ohio
App.3d 258, 2011-Ohio-820, 955 N.E.2d 1020 (Cooney, J., dissenting). We
accepted discretionary jurisdiction to hear the commissioners’ appeal. 128 Ohio
St.3d 1556, 2011-Ohio-2905, 949 N.E.2d 43.
                                     Analysis
       {¶ 9} The commissioners raise three propositions of law: first, that the
commissioners had the budgetary discretion to exclude one or more of its
subordinate divisions from participating in the ERIP; second, that the union-
represented Sanitary Engineering Division employees did not have standing to
initiate a taxpayer suit, because they did not seek to vindicate a public right; and
third, that the Sanitary Engineering Division employees were required to exhaust
the available administrative remedies prior to filing the action. Because our
resolution of the issues of taxpayer standing and exhaustion of administrative
remedies is dispositive, we will address them first.
                               Taxpayer Standing

       {¶ 10} Before a court may consider the merits of a party’s legal claim, the
party seeking relief must establish that he or she has standing to bring the claim.
State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451, 469,
715 N.E.2d 1062 (1999). The issue of standing determines “whether a litigant is




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                                 January Term, 2012




entitled to have a court determine the merits of the issues presented.” Ohio
Contrs. Assn. v. Bicking, 71 Ohio St.3d 318, 320, 643 N.E.2d 1088 (1994).
Whether a party has established standing to bring an action before the court is a
question of law, which we review de novo. Cuyahoga Cty. Bd. of Commrs. v.
State, 112 Ohio St.3d 59, 2006-Ohio-6499, 858 N.E.2d 330, ¶ 23.
          {¶ 11} An analysis of standing in a statutory taxpayer action against a
county entity must begin with R.C. 309.12, which allows a county prosecutor to
initiate legal action to restrain the contemplated misapplication of county funds or
completion of illegal contracts or to recover funds or damages from illegal
contracts that have been executed or funds that have been misapplied.           If a
taxpayer presents a written request to the county prosecutor to take action
pursuant to R.C. 309.12 and is denied assistance from the county prosecutor, the
taxpayer may initiate his own action on behalf of the county. R.C. 309.13. In
addition to the satisfaction of the foregoing formal requirement, the taxpayer must
also demonstrate that the remedy sought will benefit the public in order to have
standing. State ex rel. White v. Cleveland, 34 Ohio St.2d 37, 295 N.E.2d 665
(1973).
          {¶ 12} “ ‘ “There are serious objections against allowing mere interlopers
to meddle with the affairs of the state, and it is not usually allowed unless under
circumstances when the public injury by its refusal will be serious.” ’ (Emphasis
added.)” State ex rel. Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d at
472, 715 N.E.2d 1062, quoting State ex rel. Trauger v. Nash, 66 Ohio St. 612,
616, 64 N.E. 558 (1902), quoting People ex rel. Ayres v. Bd. of State Auds., 42
Mich. 422, 429, 4 N.W. 274 (1888). Accordingly, only “when the issues sought
to be litigated are of great importance and interest to the public [may they] be
resolved in a form of action that involves no rights or obligations peculiar to
named parties.” Sheward at 471. Conversely, when a remedy being pursued is
one that is merely for the individual taxpayer’s benefit, the taxpayer cannot claim



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that he is vindicating a public right, and he will not have standing to pursue a
taxpayer action. State ex rel. Caspar v. Dayton, 53 Ohio St.3d 16, 20, 558 N.E.2d
49 (1990).
        {¶ 13} In Caspar, police officers alleged that the city of Dayton was in
violation of R.C. 9.44 by not recognizing the officers’ prior public service when
computing the amount of each officer’s supplemental vacation leave. Id. at 16.
The police officers sought a writ of mandamus to compel the city to correct its
computation process and provide additional leave benefits. This court held that
the goal of compelling fringe benefits for the police officers’ own benefit did not
constitute the goal of enforcing a public right and that the police officers’ right to
vacation pay did not constitute a public right for purposes of a statutory taxpayer
action. Id. at 20.
        {¶ 14} Since Caspar, our state’s appellate courts have generally
concluded that taxpayers were not attempting to benefit the public in similar
circumstances. E.g., Cleveland ex rel. O'Malley v. White, 148 Ohio App.3d 564,
2002-Ohio-3633, 774 N.E.2d 337, ¶ 42-47 (8th Dist.) (holding that electricians’
union lacked taxpayer standing to enjoin the city from using nonelectricians to
perform certain work, because public safety was not a true concern and the union
was merely protecting its members’ interests in keeping the work for themselves);
Assn. of Cleveland Fire Fighters, Local 93 v. Cleveland, 156 Ohio App.3d 368,
2004-Ohio-994, 806 N.E.2d 170, ¶ 16 (8th Dist.) (holding that firefighters’ union
lacked taxpayer standing to compel back pay and wage differentiation between
different ranks of officers because the allegation of a public benefit was a pretext
for seeking a private benefit); Cincinnati ex rel. Radford v. Cincinnati, 1st Dist.
No. C-030749, 2004-Ohio-3501, 2004 WL 1486072, ¶ 12-13 (holding that
retirement-system trustees lacked taxpayer standing because their goal was not to
enforce a public right but was merely to benefit the retirement system and its
members); Home Builders Assn. of Dayton & Miami Valley v. Lebanon, 167 Ohio




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                                  January Term, 2012




App.3d 247, 2006-Ohio-595, 854 N.E.2d 1097, ¶ 54 (12th Dist.) (holding that
homebuilders lacked standing in a taxpayer action seeking a declaration of
unconstitutionality of a city ordinance requiring telecommunications connection
fees, because the action was primarily to enforce the homebuilders’ private
interests, not a public right).
        {¶ 15} This court distinguished Caspar in a subsequent decision, State ex
rel. Fisher v. Cleveland, 109 Ohio St.3d 33, 2006-Ohio-1827, 845 N.E.2d 500.
The relators in Fisher sought to enjoin the city from requiring municipal
employees to submit copies of their tax returns in order to prove that they satisfied
the city’s residency requirement. Although the relators’ taxpayer action in Fisher
was similar to Caspar in that the controversy arose from a public-employment
relationship, we reached a different conclusion and held that the relators did have
standing to pursue the action. Id. at paragraph one of the syllabus. Specifically,
the city’s actions constituted an unnecessary violation of privacy and therefore an
abuse of its corporate powers, which is an appropriate target for a statutory
municipal taxpayer action. Id. at paragraph three of the syllabus. This court
made it clear that we were not suggesting that citizens always have taxpayer
standing to challenge the terms of public employment when we expressly
distinguished Caspar. Id. at ¶ 12-18. Moreover, our decision in Fisher was
supported by factors that are not present in the case at hand.
        {¶ 16} Unlike the relators in Fisher, the union here has failed to allege
any concrete taxpayer interest that is threatened by the county’s ERIP resolution.
Instead, the union merely alleges that the existence of a statutorily noncompliant
county resolution constitutes an injury in and of itself.        Although it is well
established that taxpayers “may judicially contest the validity of any official act
which directly affects prejudicially their rights as taxpayers by increasing the
burden of taxes or otherwise,” taxpayers cannot contest official acts “merely upon
the ground that they are unauthorized and invalid.” Pierce v. Hagans, 79 Ohio St.



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                             SUPREME COURT OF OHIO




9, 22, 86 N.E. 519 (1908). Thus, without more than the bare claim that the county
has failed to comply with R.C. 145.297, the union cannot establish taxpayer
standing.
       {¶ 17} Although a county’s failure to comply with a statute would
certainly not benefit the public, allowing constant judicial intervention into
government affairs for matters that do not involve a clear public right would also
not benefit the public. As in Caspar, there is no vindication of public rights or
conferral of public benefits to be found in the union’s attempt to obtain retirement
benefits for a small number of employees. Therefore, we hold that the union
lacked taxpayer standing to challenge the board’s ERIP resolution, and the courts
below erred in failing to dismiss the union’s taxpayer action for that reason.
                    Exhaustion of Administrative Remedies
       {¶ 18} Because we hold that the union did not have standing to pursue its
taxpayer action, the issue of exhaustion of administrative remedies is moot as to
the taxpayer action. However, to the extent that the union’s complaint sought
relief that was separate from the taxpayer cause of action, we examine whether
the union and the Sanitary Engineering Division employees were required to
exhaust administrative remedies prior to initiating a declaratory-judgment action.
       {¶ 19} It is a “long-settled rule of judicial administration that no one is
entitled to judicial relief for a supposed or threatened injury until the prescribed
administrative remedy has been exhausted.” Myers v. Bethlehem Shipbuilding
Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 82 L.Ed. 638 (1938). Thus, a “party
must exhaust the available avenues of administrative relief through administrative
appeal” before seeking separate judicial intervention. Noernberg v. Brook Park,
63 Ohio St.2d 26, 29, 406 N.E.2d 1095 (1980). “Exhaustion is generally required
as a matter of preventing premature interference with agency processes, so that
the agency may function efficiently and so that it may have an opportunity to
correct its own errors, to afford the parties and the courts the benefit of its




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experience and expertise, and to compile a record which is adequate for judicial
review.” Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 45 L.Ed.2d 522
(1975).     Where a party fails to exhaust available administrative remedies,
allowing declaratory relief would serve “only to circumvent an adverse decision
of an administrative agency and to bypass the legislative scheme.” Fairview Gen.
Hosp. v. Fletcher, 63 Ohio St.3d 146, 152, 586 N.E.2d 80 (1992).
          {¶ 20} We first look to what administrative remedies were available to the
union-represented Sanitary Engineering Division employees. When a board of
county commissioners adopts regulations that allow parties to request review from
an administrative authority, the decision of that authority constitutes a final order
that is appealable, under R.C. 2506.01, to an applicable court of common pleas.
R.C. 307.56. Pursuant to R.C. 145.297(B), “[e]very retirement incentive plan
shall include provisions for the timely and impartial resolution of grievances and
disputes arising under the plan.”
          {¶ 21} The ERIP in question complied with the above statutory
requirements by providing:       “Any employee determined to be ineligible to
participate in this early retirement incentive plan may file a grievance * * *. Such
grievances shall be heard and decided by the Cuyahoga County Administrator
* * *.    The decision of the Cuyahoga County Administrator shall be final.”
Although the ERIP was made available only to employees in an “Employing
Unit” defined to exclude the Sanitary Engineering Division, the ERIP did not
define “Employee” to exclude any division’s employees, and thus the grievance
process was made available to all employees under the board’s supervision.
Accordingly, the Sanitary Engineering Division employees were required to file a
grievance with the administrator and to file an R.C. 2506.01 administrative appeal
from the administrator’s decision, in order to exhaust their administrative
remedies.




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       {¶ 22} Although none of the union-represented employees was named in
the grievance that was filed on behalf of all of the Sanitary Engineering Division
employees, some of the union-represented employees availed themselves of the
grievance process by participating in the hearing with the administrator. After the
administrator issued a final order denying the grievance, none of the Sanitary
Engineering Division employees filed an administrative appeal. Accordingly, the
employees failed to exhaust all of their administrative remedies.
       {¶ 23} It is well settled that “[a] person entitled under R.C. Chapter 2506
to appeal [an administrative order] is not entitled to a declaratory judgment where
failure to exhaust administrative remedies is asserted and maintained.”
Schomaeker v. First Natl. Bank of Ottawa, 66 Ohio St.2d 304, 421 N.E.2d 530
(1981), paragraph three of the syllabus. Under this general rule, the union was
not entitled to pursue its action for declaratory judgment, because it filed the
action almost one year after the final order of the administrator without first
attempting a timely R.C. 2506.01 appeal from the order. However, in line with
the Eighth District’s holding below, the union asserts that an exception to the
general rule applies and that the Sanitary Engineering Division employees were
not required to exhaust their administrative remedies, because continuing to
participate in the grievance process would have been futile.
       {¶ 24} It is true that parties need not pursue their administrative remedies
if doing so would be futile or a vain act. Driscoll v. Austintown Assoc., 42 Ohio
St.2d 263, 275, 328 N.E.2d 395 (1975). However,


       a “vain act” occurs when an administrative body lacks the
       authority to grant the relief sought; a vain act does not entail the
       petitioner’s probability of receiving the remedy. The focus is on
       the power of the administrative body to afford the requested relief,
       and not on the happenstance of the relief being granted.




                                        10
                               January Term, 2012




(Emphasis sic.) Nemazee v. Mt. Sinai Med. Ctr., 56 Ohio St.3d 109, 115, 564
N.E.2d 477 (1990). Neither the decision below nor the appellees explain why it
would have been impossible to obtain relief through an administrative appeal,
apart from merely stating that the Sanitary Engineering Division employees were
excluded from participating in the ERIP. As noted above, the board’s ERIP made
the grievance process available to the employees, and union-represented
employees were given an opportunity to be heard during the grievance hearing.
Nothing would have prevented the union from attacking the validity of the ERIP
in an administrative appeal. Therefore, we hold that the Sanitary Engineering
Division employees’ continued participation in the grievance process would not
have been a vain act, and we reverse the Eighth District’s decision allowing the
union to pursue the declaratory-judgment action without exhausting the available
administrative remedies.
                                   Conclusion
       {¶ 25} We hold that the union lacked standing to bring a taxpayer action
against the commissioners and that to the extent that the union had standing in its
own right, the union failed to exhaust its administrative remedies. Therefore, the
issue of whether the commissioners’ ERIP was in violation of R.C. 145.297 is
moot. Accordingly, we reverse the decision of the Eighth District Court of
Appeals.
                                                               Judgment reversed.
       O’CONNOR, C.J., and LUNDBERG STRATTON, O’DONNELL, LANZINGER,
and CUPP, JJ., concur.
       PFEIFER, J., concurs in judgment only.
                              __________________
       Mangano Law Offices Co., L.P.A., Basil W. Mangano, and Joseph J.
Guarino III, for appellee.



                                        11
                            SUPREME COURT OF OHIO




       William D. Mason, Cuyahoga County Prosecuting Attorney, and Dale
Pelsozy, Assistant Prosecuting Attorney, for appellant.
                           ______________________




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