Access with Attitude by Marburger David;Idsvoog Karl; & Karl Idsvoog

Author:Marburger, David;Idsvoog, Karl; & Karl Idsvoog
Language: eng
Format: epub
Publisher: Ohio University Press
Published: 2011-08-15T00:00:00+00:00

10.8 The Functional-Equivalency Test and the De Facto End of the De Facto Public Office

Two cases decided within four months of each other in 2006 have practically eliminated the de facto public office theory.

The Privatized Prison

In Oriana House, Inc. v. Montgomery,71 the Ohio Supreme Court ruled that the Public Records Act did not apply to a private, nonprofit corporation contracting with a local government board to run a county prison.

State law allows a common pleas court to set up a prison administered by a judicial corrections board made up of judges of that court. The board may contract with a private organization to manage the prison, subject to audit by the state. The Ohio Department of Rehabilitation and Correction must approve the prison and fund it. The county where the common pleas court sits also may fund the prison.

The judges of the Summit County Court of Common Pleas formed a judicial corrections board and received the state’s approval to operate a local prison. The judicial board contracted with Oriana House Inc., a private, nonprofit corporation, to run the prison. Oriana House received all of the funding that the state granted to the judicial board for the prison. Oriana House had over $25 million in revenue, about 88 percent of which came from state and local tax funding.

The state auditor began to investigate Oriana House’s financial transactions, a move that Oriana House resisted. The state auditor demanded that Oriana House provide the personnel files of certain employees and travel reimbursement reports. Oriana House rejected the state auditor’s demand, arguing that the auditor had no authority to require it to divulge those records.

In the meantime, Oriana House was prosecuting a separate suit in the court of appeals to compel the state auditor to disclose what Oriana insisted were public records. The state auditor then countersued Oriana under the Public Records Act. Arguing that Oriana was a de facto public office, the auditor sought an order to compel the release of the requested personnel and travel records.

The court of appeals ordered Oriana House to disclose the records, ruling that it was a public institution and therefore a public office. Oriana House appealed to the Ohio Supreme Court, which reversed, ruling for the Oriana House 4–3.

In the majority opinion by Justice Paul Pfeifer, the court adopted what it called the “functional-equivalency test” to decide de facto public office cases. Under that test, four criteria determine whether a private organization is a public institution and therefore a de facto public office. Paraphrased, those criteria are:

1. whether the entity performs a governmental function;

2. the extent to which the entity’s funding comes from state or local government;

3. the extent to which the government controls the entity’s day-to-day performance of its activities; and

4. whether the entity was created by the government or as an alter ego to avoid the Public Records Act.72

The court decided that administering prisons “has traditionally been a uniquely governmental function,” so Oriana House satisfied the first factor.73

Oriana House received 100 percent of the Summit

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