Ohio Attorney General (AG) Mike DeWine believes it’s part of the county engineer’s legal duties to maintain all county and joint county ditches and drains.
In an opinion sought by Madison County Prosecutor Steve Pronai and the county commissioners, DeWine said under state law: “…a county engineer has ‘general charge and supervision of the repair and maintenance of all county and joint county ditches, drains…within his county…”
Pronai delivered DeWine’s message to the county commissioners on Monday, May 12. The commissioners had requested an opinion by the AG’s office after a disagreement arose in 2013 over the duties of county engineer Dave Brand.
For many years, the Madison County engineer also served as the sanitary engineer and was paid an annual supplemental salary of $26,500. In a July 26, 2013 story in The Madison Press, Brand said the dual role stemmed from a “verbal pact made 12 years ago.”
That was the situation until May 2013 when the commissioners cut Brand’s extra pay to $15,000.
Brand objected to the salary cut and was relieved of sanitary engineer duties.
The commissioners then hired M-E Engineering to perform sanitary duties on an as-needed basis. Two other employees take care of the day-to-day operations of the sewer districts within the county.
Following his dismissal, Brand said his office would no longer perform ditch maintenance, claiming those duties fell under the duties of the sanitary engineer and not the county engineer. Brand ordered mowers parked on July 2, 2013, but then resumed mowing a month later at the request of local farmers.
That’s when Pronai went to the AG’s office for a non-partisan, objective opinion.
Questions asked of the attorney general included the following:
• If no monetary compensation is offered to be paid to the county engineer for performance of the county sanitary engineer job, it is still an offer of employment?
• Are the duties of the county sanitary engineer with regards to drainage facilities under Ohio Revised Code (ORC)?
• What are the statutory duties of the county sanitary engineer in general and specific to ditch maintenance?
• If the county engineer has not contractually agreed to perform the duties of county sanitary engineer, is he still required to perform the drainage and ditch work outlined ORC?
• If the county engineer has not contractually agreed to perform the duties of the county sanitary engineer, what statutory duties does the county engineer have pertaining to drainage and ditches other than those related to the right-of-way on county roads?
• What are the statutory duties of the county engineer with regard to drainage facilities not acquired, constructed, maintained or operated under the ORC?
• May county commissioners offer additional compensation to the county engineer to perform drainage work not performed under the ORC.
The AG’s conclusions are the following:
• The county engineer has numerous statutory duties related to drainage and ditches. The county engineer “has general charge and supervision of the repair and maintenance of all county…ditches, drains,” etc. under the Ohio Revised Code.
• The statutory duties of the county sanitary engineer are set forth in specific chapters of the ORC and relate to solid waste management districts, county water supply systems and county sewer districts.
• County commissioners are prohibited by law to offer additional compensation to the county engineer for performing duties under various chapters of ORC.
• When commissioners propose to enter an agreement with the county engineer pursuant to RC 315.14 …they must “offer to pay reasonable compensation to the county engineer for performance of duties under the agreement.”
Since Brand’s duties as sanitary engineer ended last year, no such offer is coming, commissioner Dave Dhume said.
Brand said Monday he needed more time to review the opinion and to speak with Pronai before making a statement.
Brand also said he saw some “inconsistencies with what was originally asked and what was answered in this opinion.”
Speaking for the commissioners, Paul Gross said they were “satisfied with the results” of the opinion.
“It affirmed what we claimed last summer,” Gross said.
He said the dispute centered on Brand’s desire to be paid two simultaneous salaries
“When we ended the practice he protested by discontinuing mowing,” Gross said. “We contended it was his duty to maintain the ditches in his elected capacity.
“The attorney general affirmed it was part of his job. He was not due any additional compensation for attending to his statutory duties.”
Gross said it was unfortunate the constituents had to suffer through Brand’s protest.
“That’s the unfortunate part,” Gross said. “Hopefully we can get back to business and do what we’re elected to do.”
Dhume said the opinion “is pretty clear that the county engineer is responsible for mowing ditches — that is with or without an agreement.”
Dean Shipley can be reached at (740) 852-1616, ext. 17 or via Twitter @DeanAShipley.