OAG 1994-005.

• Case Date: March 18, 1994
• Court: Ohio

Ohio Attorney General Opinions 1994. OAG 1994-005. March 18, 1994OPINION NO. 1994-005Arnold R. Tompkins, Director Department of Human Services 30 East Broad Street Columbus, Ohio 43266-0423Dear Director Tompkins: You have requested an opinion concerning legal representation provided to a county department of human services ("CDHS") in an action in small claims court for the recovery of a public assistance benefit overpayment. By way of background, you state that 1987 Op. Att'y Gen. No. 87-090 determined that insofar as a county prosecuting attorney is the statutory counsel for the CDHS, see R.C. 309.09(A), the county prosecuting attorney is required to prosecute an action to recover welfare overpayments in the small claims division of a municipal or county court on behalf of a CDHS. Following the issuance of Op. No. 87-090, the Department of Human Services promulgated 15 Ohio Admin. Code 5101:1-25-35 and 5101:1-27-03. Under these rules, a CDHS is prohibited from attempting collection of a public assistance benefit overpayment in small claims court without legal representation by the county prosecuting attorney. Subsequent to the promulgation of those two rules, the General Assembly enacted R.C. 1925.18, see 1989-1990 Ohio Laws, Part I, 523 (Sub. S.B. 89, eff. June 13, 1990), which authorizes a county prosecuting attorney to designate an employee of a CDHS to appear in the small claims division of a municipal court on behalf of the CDHS.(fn1) In light of R.C. 1925.18, you ask whether the Department of Human Services is required to amend rules 5101:1-25-35 and 5101:1-27-03 to make them comport with the provisions of R.C. 1925.18.

An Administrative Rule May Not Conflict with a State Statute

An administrative agency may, when so authorized, promulgate rules that facilitate the operation of what has been enacted by the General Assembly. See State ex rel. Foster v. Evatt, 144 Ohio St. 65, 102, 56 N.E.2d 265, 281 (1944), cert. denied, 324 U.S. 878 (1944); Ransom & Randolph Co. v. Evatt, 142 Ohio St. 398, 407-08, 52 N.E.2d 738, 742-43 (1944). An administrative agency, however, may not promulgate a rule that is arbitrary, unreasonable, or that conflicts with a related statute enacted by the General Assembly. Youngstown Sheet & Tube Co. v. Lindley, 38 Ohio St. 3d 232, 234, 527 N.E.2d 828, 830 (1988); Kroger Grocery...