[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

ex rel. Yost v. Burns, Slip Opinion No. 2022-Ohio-1326.]

NOTICE

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published.

SLIP OPINION NO. 2022-OHIO-1326

THE STATE EX REL. YOST, ATTY. GEN., APPELLANT, v. BURNS, APPELLEE.

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State ex rel. Yost v. Burns, Slip Opinion No. 2022-Ohio-1326.]

R.C. 9.39—Strict liability of public officials for the misappropriation of public 

money—A public official cannot be held strictly liable for the 

misappropriation of public money when neither the official nor any of the 

official’s subordinates collects or receives, and therefore does not control, 

the funds—Judgment affirmed.

(No. 2020-1078—Submitted June 30, 2021—Decided April 26, 2022.)

APPEAL from the Court of Appeals for Montgomery County,

No. 28496, 2020-Ohio-3820.

__________________

DONNELLY, J.

{¶ 1} At its core, this case is about whether appellee, Robert Burns, may be 

held responsible for the embezzlement of public money by Carl Shye from Burns’s 

and Shye’s mutual employer, even though it is clear from the record that Burns 
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played no part in Shye’s criminal activity. We conclude that Burns is not strictly 

liable for the embezzled funds, because he did not receive or collect the public 

money that was misappropriated. We affirm the judgment of the court of appeals.

FACTS AND PROCEDURAL HISTORY

{¶ 2} Burns contracted with New City Community School (“New City”), a 

charter school, to be its chief executive officer. His official title was “director,”

under a contract running from August 1, 2009, to June 30, 2010. Burns reported to 

the New City School Governing Board, which granted to him the “general 

supervision and management authority of the School and all personnel employed 

by the School.”

{¶ 3} Burns had the authority to approve budget expenditures for New City 

using the Ohio Department of Education’s (“ODE”) electronic accounting system.

Although approval of budget expenditures is what triggered the release of public 

money from the ODE into New City’s bank accounts, Burns had no authority to 

disburse public money from any of New City’s bank accounts, nor did he have any 

supervisory responsibilities over those accounts. Those duties belonged to Shye.

Shye was an independent contractor hired by New City to be the school’s treasurer,

and he reported directly to the board of directors. Burns did not supervise, manage, 

or have any authority over Shye.

{¶ 4} During the term of Burns’s contract, New City received state and 

federal grants totaling $432,989.57. The auditor of state audited New City for the 

2009-2010 school year and concluded that more than $50,000 had been 

misappropriated.

1

{¶ 5} In the auditor’s initial finding for recovery, Burns was not identified 

as a person responsible for the misappropriation of public funds. The auditor relied 

on an Attorney General opinion positing that R.C. 9.39 does not impose strict 

1. Shye pleaded guilty in federal court to embezzlement of funds from New City and various other 

entities that had received federal funds.
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liability on public officials for misappropriation of public money unless the officials

controlled those funds.

{¶ 6} On July 3, 2018, appellant, the Ohio Attorney General, filed a 

complaint against Burns and three other defendants to recover the misappropriated 

funds. The attorney general contended that Burns and the three other defendants, 

including Shye, were jointly and severally liable as public officials under R.C. 9.39.

The trial court granted the attorney general’s cross-motion for summary judgment 

against Burns and found him strictly liable.

{¶ 7} On appeal, Burns argued that his authority over New City’s budget 

expenditures did not include having control of public money. The court of appeals

agreed and reversed the lower court’s decision, holding that public officials are

strictly liable for the loss of public money only when the official exercises control 

over those funds, even if the loss is the result of a subordinate’s conduct. The court 

of appeals concluded that Burns had not received the funds or otherwise controlled

them and that Shye was not Burns’s subordinate.

{¶ 8} We accepted the attorney general’s discretionary appeal and address 

the following proposition of law:

A public official is liable under R.C. 9.39 if he or his 

subordinates have “collected” public money on behalf of his public 

office. One has “collected” public money if he has personally taken 

actions essential to the public office’s obtaining or receiving the 

public money, and the office receives the public money.

See 160 Ohio St.3d 1458, 2020-Ohio-5332, 157 N.E.3d 789.

ANALYSIS

{¶ 9} This case was decided on summary judgment and is therefore subject 

to de novo review. Hudson v. Petrosurance, Inc., 127 Ohio St.3d 54, 2010-Ohio-
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4505, 936 N.E.2d 481, ¶ 29. Summary judgment will be granted when “the 

evidence, properly submitted, shows that there is no genuine issue as to any material 

fact and that the moving party is entitled to judgment as a matter of law.” Todd 

Dev. Co., Inc. v. Morgan, 116 Ohio St.3d 461, 2008-Ohio-87, 880 N.E.2d 88, ¶ 11; 

Civ.R. 56(C).

{¶ 10} R.C. 9.39 states: “All public officials are liable for all public money 

received or collected by them or by their subordinates under color of office.” We 

examined the history and components of that statute in Cordray v. Internatl. 

Preparatory School, 128 Ohio St.3d 50, 2010-Ohio-6136, 941 N.E.2d 1170, 

¶ 12-27. As in Cordray, that legal discussion is relevant here, but not dispositive.

The key question in Cordray was factual: whether the defendant and her 

subordinates had “received or collected public money under color of office.”

(Emphasis sic.) Id. at ¶ 28. We remanded the cause to the trial court for a 

determination of whether the defendant’s responsibilities at the preparatory school 

had “included the receipt or collection of public money, or whether she [had] 

supervised employees who received or collected public money under color of 

office.” Id. at ¶ 29.

{¶ 11} The same issue presents itself in this case: Did Burns receive or 

collect public money under color of office? It is quite clear that he did not. The 

person who received or collected public money in this case was Shye. Even though 

the money could not have been received or collected without Burns’s requesting

funds from the state or federal government, Burns himself did not receive or collect 

those funds.

{¶ 12} Among the strongest support for Burns’s position are published 

opinions of the attorney general. “The language of R.C. 9.39 with respect to the 

liability of public officials is plain and unambiguous. Public officials are held 

liable, pursuant to R.C. 9.39, only for public money that they or their subordinates 

receive or collect.” 1993 Ohio Atty.Gen.Ops. No. 93-004, at 2-25. “Thus, a public 
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5

official will be held personally liable if public moneys that come into his possession 

or custody in his official capacity are lost.” 1994 Ohio Atty.Gen.Ops. No. 94-048,

at 2-239.

{¶ 13} Though the words “received” and “collected” are not defined in any 

statutory provision related to R.C. 9.39, we conclude that the attorney general and 

the court of appeals were correct in determining that both words encompass an 

element of control. See id.; Cordray, 128 Ohio St.3d 50, 2010-Ohio-6136, 941 

N.E.2d 1170, at ¶ 12 (“That public officials are liable for the public funds they 

control is firmly entrenched in Ohio law”). The Oxford English Dictionary defines 

“collect” as “to receive money, to get paid.” III Oxford English Dictionary 476 (2d 

Ed.1989). And it defines “receive” as “[t]o take in one’s hand, or into one’s 

possession.” VIII Oxford English Dictionary at 314. These definitions comport 

with our conclusion in this case. In short, a person cannot collect or receive public 

money, let alone be held strictly liable for the misappropriation of that money,

within the context of R.C. 9.39 without controlling it. The record is quite clear that 

Burns did not control the misappropriated funds: the money was never in his 

possession, nor did he exert any control over it. Moreover, because Shye was an 

independent contractor, hired and managed by New City’s board of directors, he 

was not Burns’s subordinate.

{¶ 14} Burns has an obligation to “account for and disburse according to 

law moneys that have come into his hands by virtue of his being [a] public officer” 

of New City, Seward v. Natl. Sur. Co., 120 Ohio St. 47, 50, 165 N.E.537 (1929). 

The attorney general relies on Seward and State, for Use of Wyandot County v. 

Harper, 6 Ohio St. 607 (1856), in support of his argument that Burns should be 

held liable for public money that was received under color of office. But in both of 

those cases, the defendants had received, collected, and physically controlled the 

funds for which loss they were found liable. Seward at 49; Harper at 610. The 

facts of this case establish, however, that the public money that was 
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misappropriated from New City was never in Burns’s control nor physically in his 

hands. Burns did not collect or receive the public money that was misappropriated;

therefore, he did not control those funds. Neither did any of his subordinates. Shye, 

who pleaded guilty to the misappropriation of funds, was not Burns’s subordinate; 

he operated independently of Burns in his general job duties, and he certainly acted 

independently of Burns in embezzling funds from New City.

CONCLUSION

{¶ 15} We conclude that Burns cannot be held strictly liable for the 

misappropriation of public money from New City, because he did not collect or 

receive those funds. We affirm the judgment of the court of appeals.

Judgment affirmed.

KENNEDY, DEWINE, and STEWART, JJ., concur.

FISCHER, J., dissents, with an opinion joined by O’CONNOR, C.J.

BRUNNER, J., dissents.

_________________

FISCHER, J., dissenting.

{¶ 16} Because I conclude that appellee, Robert Burns, is strictly liable 

under R.C. 9.39 for the misappropriation of public funds, I respectfully dissent and 

would reverse the judgment of the court of appeals.

{¶ 17} R.C. 9.39 provides:

All public officials are liable for all public money received 

or collected by them or by their subordinates under color of office. 

All money received or collected by a public official under color of 

office and not otherwise paid out according to law shall be paid into 

the treasury of the public office with which he is connected to the 

credit of a trust fund and shall be retained there until claimed by its 
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lawful owner. If not claimed within a period of five years, the 

money shall revert to the general fund of the public office.

(Emphasis added.)

{¶ 18} Critically, among Burns’s duties was approving a final expenditure 

report detailing the distribution of New City Community School funds. Burns had 

to approve those reports in order to release public funds into the school’s bank 

accounts. Burns submitted applications to acquire funds for the school from three 

separate grant sources. Without Burns’s carrying out these duties, the school would 

have been unable to collect these financial resources.

{¶ 19} In concluding that Burns is not strictly liable under R.C. 9.39, the 

majority opinion repeatedly emphasizes that Burns never controlled the funds in 

question. See majority opinion, ¶ 13, 14. It is significant, however, that the plain 

language of R.C. 9.39 does not require that a public official’s liability be contingent 

on that official’s having “controlled” the funds in question. Thus, in reaching its 

conclusion, the majority opinion effectively writes into the statute a requirement 

that the public official have “controlled” the funds in question.

{¶ 20} The General Assembly could have included a “control” element in 

R.C. 9.39; however, it did not. Instead, the statute applies to public officials who 

have “received or collected” funds.

{¶ 21} This court has stated that “R.C. 9.39 represents a codification of 

Ohio common law imposing strict liability on public officials for the loss of public 

funds with which they have been entrusted.” Cordray v. Internatl. Preparatory 

School, 128 Ohio St.3d 50, 2010-Ohio-6136, 941 N.E.2d 1170, ¶ 17. In Cordray, 

this court stated, “That public officials are liable for the public funds they control 

is firmly entrenched in Ohio law.” Id. at ¶ 12. This court added that it is wellsettled that “ ‘public property and public money in the hands of or under the control 

of such officer or officers constitute a trust fund, for which the official as trustee 
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should be responsible to the same degree as the trustee of a private trust fund.’ ” 

(Emphasis added.) Id., quoting Crane Twp. ex rel. Statler v. Secoy, 103 Ohio St. 

258, 259-260, 132 N.E. 851 (1921).

{¶ 22} Looking at the cases cited in Cordray and similar decisions of this 

court—all of which, notably, were decided under the common law before its 

codification in R.C. 9.39—Burns asserts that the caselaw establishes that “custody 

and control of the public funds at issue” is “an essential condition for imposing 

strict liability.” Appellant, the Ohio Attorney General, responds to this argument 

by asserting that while decisions of this court indicate that “control” of public funds 

triggers liability on the part of a public official, the caselaw does not require that 

the funds be “controlled” for liability to attach. Instead, the attorney general argues, 

the caselaw establishes that “control” is merely one factor sufficient to trigger 

liability.

{¶ 23} The reading of the statute advocated by the attorney general best 

synthesizes the common law underlying the statute and the statutory language itself. 

Burns does not cite any cases in which this court, either before or after the

enactment of R.C. 9.39, has held that a public official who collects or receives funds 

but does not control those funds avoids liability for their misappropriation. The 

attorney general is correct that while a public official who controls funds (and, 

therefore, must necessarily have received those funds) is strictly liable under the 

statute, the statute does not require (nor did the common law require) that the 

official have control of the funds for liability to attach. In light of the language of 

R.C. 9.39, the cases addressing the misappropriation of public funds should not be 

taken as standing for the proposition that funds are “received or collected” only 

when the public official has control over those funds. In other words, these cases 

have established that control of public funds is sufficient for liability to attach under 

R.C. 9.39, but they do not establish that control of public funds is a “floor” that 

must be met in order to establish liability. Instead, this court’s decisions and the 
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statute, R.C. 9.39, provide that something less than control is sufficient to establish 

liability, namely a public official’s having “received” or “collected” public funds.

{¶ 24} Burns cannot get around the fact that he effectively asks this court to 

write a “control” requirement into the statute—an act that would go against 

fundamental principles of law. “ ‘In construing statutes, it is customary to give 

words their plain [and] ordinary meaning unless the legislative body has clearly 

expressed a contrary intention.’ ” In re 6011 Greenwich Windpark, L.L.C., 157 

Ohio St.3d 235, 2019-Ohio-2406, 134 N.E.3d 1157, ¶ 19, quoting Youngstown 

Club v. Porterfield, 21 Ohio St.2d 83, 86, 255 N.E.2d 262 (1970). Here, the words 

“collected” and “received” are undefined in the statute, and the General Assembly 

has not clearly expressed an intention that those words should be given anything 

but their plain and ordinary meaning. The words are also distinct, as “collected” 

indicates an active seeking of funds, while “received” indicates a passive 

accumulation of funds. Thus, it is incorrect to treat those two words as 

interchangeable, as the Second District Court of Appeals did below. See 2020-

Ohio-3820, 156 N.E.3d 461, ¶ 11-12. Moreover, while Burns argues that the phrase 

“collected or received” is a term of art meaning “controlled,” there is no clear 

indication that the General Assembly intended that this term of art be applied in 

this context. Quite simply, if the General Assembly meant to require that the funds 

be “controlled,” it would have used that term instead of “collected or received.”

{¶ 25} The trial court was correct that “collected” has a plain and ordinary 

meaning and that, because Burns played an absolutely necessary role in procuring 

the federal funds for the school, Burns “collected” those funds. I accordingly would 

hold that a public official collects funds for purposes of R.C. 9.39 by acquiring 

them for the official’s office, even if the official does not physically receive the 

funds or control them after receipt.

{¶ 26} For these reasons, I respectfully dissent. I would reverse the 

judgment of the court of appeals and reinstate the judgment of the trial court.
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O’CONNOR, C.J., concurs in the foregoing opinion.

_________________

Dave Yost, Ohio Attorney General, Benjamin M. Flowers, Solicitor 

General, Stephen Carney, Chief Deputy Solicitor General, and Todd R. Marti and 

Ashley A. Barbone, Assistant Attorneys General, for appellant.

Bricker & Eckler, L.L.P., and Janet K. Cooper, for appellee.

Gingo & Bair Law, L.L.C., Lindsay F. Gingo, and Sarah E. Kutscher, urging 

affirmance for amici curiae Buckeye Association of School Administrators, Ohio 

Association of School Business Officials, and Ohio School Boards Association.

_________________