A divided Ohio Supreme Court on Wednesday declined to decide if the Ohio School Facilities Commission abused its discretion in promoting imposition of prevailing wages on building projects.

Instead, justices voted 4-3 to review a more limited issue of whether taxpayers paying a special levy to construct schools have legal standing to challenge the commission or a local school board over application of prevailing wage.

The court accepted for review one part of an appeal from the Northern Ohio Chapter of Associated Builders & Contractors, Inc. (ABC) in a lawsuit it filed against Barberton City Schools and the OSFC.

Contractors, in a case that they said was the first of its kind, wanted to determine whether the district or commission had authority in the Ohio Revised Code to require compliance with Ohio’s Prevailing Wage Law on school construction projects.

Barberton voters passed a 5.2 mill bond levy in 2008 to finance $72 million worth of school construction. The board subsequently adopted a resolution requiring payment of prevailing wages to construction workers.

The contractors group, a non-profit trade association, filed suit. It contended the school board and commission exceeded their authority in mandating compliance with prevailing wage requirements.

Summit County common pleas court dismissed the complaint in July 2009. It held that the contractors group, a construction company that bid on the project, and two Barberton taxpayers all lacked legal standing to bring the suit.

Last April, the 9th District Court of Appeals upheld the trial judge. The panel said that the contractors, company, and taxpayers could not challenge allegedly unlawful bid specifications on a school construction project.

ABC asked the Supreme Court to review whether:

  • Taxpayers in such a school district have a common law standing to bring such lawsuits.
  • Contractors and trade associations representing them could challenge bid specifications.
  • A board of education abuses its discretion in mandating payment of prevailing wages.
  • OSFC exceeded its statutory authority in adopting a resolution that promotes imposition of prevailing wage on school projects because the General Assembly expressly stated that it does not apply to them.

“The issue presented to this court is of great general interest and public importance as it involves the manner in which billions of taxpayer dollars will be expended on school construction projects in the state of Ohio,” attorney Alan Ross of Cleveland told the court on behalf of ABC.

Assistant Attorney General Jon Walden said contractors were presenting the court with nothing more than a policy disagreement that raised no significant legal issues warranting a review.

He said the 9th District correctly held that the taxpayers in the lawsuit lacked standing because they were unable to articulate an injury that was different from other similarly situated Barberton taxpayers.

“Here, (contractors) ask the court to step beyond these long-settled standing issues to serve as a super board of education to make decisions about the proper construction specifications for a local school project,” Mr. Walden said.

“But just as this court should not be the first court to weigh in on the substantive propositions, this court should also not – and cannot properly – determine how a local board of education defines its specifications for a construction project,” he said.

Justices said Wednesday they would take up only ABC’s first proposition of law dealing with a common law taxpayer standing to sue.

Making up the majority to accept the case on that point were Justices Evelyn Stratton, Maureen O’Connor, Terrence O’Donnell, and Judith Lanzinger.

Justices Stratton and O’Donnell said they also would have accepted the appeal on the other three points ABC raised.

Dissenting from the decision to accept the case on the single proposition were Chief Justice Eric Brown and Justices Paul Pfeifer and Robert Cupp.