AGO 1993-029.

• Case Date: October 28, 1993
• Court: Ohio

Ohio Attorney General Opinions 1993. AGO 1993-029. October 28, 1993OPINION NO. 1993-029Nancy Chiles Dix, Director Ohio Department of Commerce 77 South High Street Columbus, Ohio 43266-0544 Dear Director Dix: You have asked the following questions concerning the State Private Investigator and Security Guard Provider Advisory Commission:

1. Are the duties of the members of the State Private Investigator and Security Guard Provider Advisory Commission to provide advice to the Director of Commerce on matters which the Director brings to the attention of the members, or may members insist on reviewing the internal policies, procedures, and decisions, including enforcement decisions, of the Director?

2. Are members of the State Private Investigator and Security Guard Provider Advisory Commission public officers or employees?

3. What liabilities does a member of the State Private Investigator and Security Guard Provider Advisory Commission face as a result of the performance of the member's duties?

4. If a member is sued because of good faith actions taken while serving on the State Private Investigator and Security Guard Provider Advisory Commission,

(a) What immunities, privileges, or other defenses are available to the individual?

(b) Under what circumstances will the Attorney General provide legal representation of the member in the suit?

(c) If the Attorney General provides legal representation, how will conflicts in representation be resolved, e.g., a conflict between the interests of two members, or a conflict between the interests of a member and the State or the Commission?

(d) May a member designate counsel other than the Attorney General? If so, who is responsible for payment of the counsel?

Duties of State Private Investigator and Security Guard Provider Advisory Commission

Your first question concerns the scope of the duties of the State Private Investigator and Security Guard Provider Advisory Commission (hereinafter the Commission). The functions of the Commission are prescribed by R.C. 4749.02(D), as follows: "The commission shall advise the director of commerce on all matters related to the regulation of private investigators, the business of private investigation, security guard providers, and the business of security services." Thus, the Commission is responsible for providing advice to the Director of Commerce specifically concerning those matters enumerated in the above-quoted portion of R.C. 4749.02(D). It is well settled that, "[w]here authority is given to do a specified thing, but the precise mode of performing it is not prescribed, the presumption is that the legislature intended the party might perform it in a reasonable manner." Jewett v. Valley Railway Co., 34 Ohio St. 601, 608 (1878). Thus, in advising the Director of Commerce concerning "the regulation of private investigators, the business of private investigation, security guard providers, and the business of security services," R.C. 4749.02(D), the Commission may do so in any reasonable manner. See generally State ex rel. Kahle v. Rupert, 99 Ohio St. 17, 122 N.E. 39 (1918) (a public officer is required to exercise an intelligent discretion in the performance of his official duty).

Cooperation Between the Commission and the Department of Commerce

From the wording of your question, it appears that there is some disagreement as to the extent of the Commission's advisory responsibilities in relation to the duties of the Department of Commerce and its Director with respect to the regulation of private investigators, security guard providers, and those businesses. In this regard, the remainder of R.C. 4749.02(D), quoted in part above, states: "The department of commerce shall administer [R.C. Chapter 4749], and for that purpose, the director may appoint such employees and establish such rules as he considers necessary." (Emphasis added.) Thus, the Department of Commerce, under the guidance of its administrative department head, the Director of Commerce, R.C. 121.03(B), is charged with the administration of R.C. Chapter 4749, which means that the Department is responsible for implementing and supervising the regulation of private investigators, security guard providers, and those businesses, as provided in that chapter. The Commission's responsibility is to advise the Director of Commerce with respect to those implementation and supervisory functions. Cf. 1981 Op. Att'y Gen. No. 81-089 (syllabus, paragraph one) (the authority of the Ohio Public Defender Commission to generally supervise the functioning of the public defender system in Ohio pursuant to R.C. 120.01 does not extend to "the management, supervision, and control of the daily operations of the State Public Defender's Office"). Nothing in R.C. 4749.02(D) expressly empowers the Commission to...