[ 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.

S LIP O PINION N O . 2022

- O HIO - 1326
T HE S TATE EX REL . Y OST , A TTY . G EN . , A PPELLANT , v . B URNS , A PPELLEE . [ 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

—

Jud gment affirmed. (No. 2020

- 1078

— Submitted June 30 , 2021

— Decided April 26 , 202 2 .)
A PPEAL from the Court of Appeals for Montgomery County,

No. 28496 , 2020

- Ohio

- 3820.

__________________ D ONNELLY , 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 BurnsS UPREME C OURT OF O HIO

2 played no part in Shye’s c riminal activity. We conclude that Burns i s 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 c hief e xecutive o fficer. His official title was “ d irector
, ”
under a c ontract running from August 1, 2009, to June 30, 2010. Burns reported to the New City School Governin g Board , which granted to him the “general supervision and management authority of the School and all personnel employed by the S chool.” {¶ 3} Burns had the authority to approve budget expenditures for New City using the Ohio Department of Education’s (“ODE”) el ectronic 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. T he a uditor of state audit ed 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. T he auditor relied

on an A ttorney G eneral opinion positing that R.C. 9.39 d oes not impose strict

1

. Shye ple a d ed guilty in federal court to embezzlement of funds from New City and various other entities that had received federal fund s

.January Term, 2022

3 liability on public officials for misappropriation of public money unless the officials
control led thos e funds

. {¶ 6} On July 3, 2018, appellant, the Ohio A ttorney G eneral
, filed a complaint against Burns and three other defendants to recover the misappropriated
funds

. T he attorney general conten ded that Burns and the three other defendants
, including Shye, w ere 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 argu ed that his authori ty 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
, hold ing that public official s 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 receive d the funds or otherwise control le d
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 1 60 Ohio St.3d 14 58 , 2020

- Oh i o

- 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

-S UPREME C OURT OF O HIO

4 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 official s 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 th at 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 , t hat legal discussion is relevant here, but not dispositive. The key question in Co rdray 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 : D id 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 wa s Shye

. Even though
the money could not have been received or collected without Burns ’s request ing
funds from the state or federal government , Burns himself did not receive or collect
th ose funds

. {¶ 12} A mong the strongest support for Burns’s position ar e published opinions of the a ttorney g eneral. “ T he 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 publicJanuary Term, 2022

5 official will be h e ld 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

- 2 39

. {¶ 13} Though the words “received” and “collected” are not defined in any statutory provision related to R.C. 9.39, we conclude that the a ttorney g eneral and the court of appeals were correct in determining that both words encompass an eleme nt of control. See id. ; Cordray , 128 Ohio St.3d 50, 2010

- Ohio

- 6136, 941 N.E.2d 1170, at ¶ 12 ( “T hat public officials are liable f or 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
wit h 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 th at money , within the context of R.C. 9.39 without controlling it

. The record is quite clear that
Bur ns 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 subordi nate. {¶ 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 w as received under color of office. But i n both of those cases, the defendant s had received, collected, and physically controlled the
funds for which loss they were found liable. Seward at 49 ; Harper at 610. T he
facts of this case establish , however, that the public money that wasS UPREME C OURT OF O HIO

6 misappropriated from New City w as never in Burns’s control nor physically in his
hands. Burns did not collect or receive the public money that w as misappropriated;
therefore
, he did not control those funds

. N either did any of his subordina te s

. 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 misappropriat ion of public money from New City
, because he did not collect or
receive th ose funds

. We affirm the judgment of the court of appeals. Judgment affirmed.
K ENNEDY , D E W INE , and S TEWART , JJ., concur.
F ISCHER , J., dissents, with an opinion joined by O’C ONNOR , C.J.
B RUNNER , J., dissents.

_________________ F ISCHER , 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 itsJanuary Term, 2022

7 lawful owner. If not claimed within a period of five years, the money shall revert to the general fun d 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 th e 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 tha t 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 requir e 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 “contro lled” 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 rep resents 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 well

settled 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 trusteeS UPREME C OURT OF O HIO

8 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 , 10 3 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 suffic ient 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,
the refore, 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 establis hed 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 theJanuary Term, 2022

9 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” re quirement 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 w ould 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 “col lected” 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.S UPREME C OURT OF O HIO

10 O’C ONNOR , 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 & Eckle r , 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.

_________________