OAG 1994-016.

• Case Date: April 08, 1994
• Court: Ohio

Ohio Attorney General Opinions 1994. OAG 1994-016. April 8, 1994OPINION NO. 1994-016The Honorable Thomas E. FergusonAuditor of StateP.O. Box 114088 E. Broad StreetColumbus, Ohio 43266-0040 Dear Auditor Ferguson: You have requested an opinion relating to the duties of the Ohio Retirement Study Commission ("ORSC"). Specifically, you ask whether the provisions of R.C. 113.08, R.C. 121.11, R.C. 125.01-.11, R.C. 125.16, R.C. 127.16, and 2 Ohio Admin. Code Chapter 123:5-1 are applicable to the ORSC.(fn1)

I. R.C. 121.11 Is Not Applicable to the ORSC

R.C. 121.11, which concerns bonds and oaths of office, provides:

Each officer whose office is created by sections 121.02, 121.04, and 121.05 of the Revised Code shall, before entering upon the duties of his office, take and subscribe an oath of office as provided by law and give bond, conditioned according to law, with security to be approved by the governor in such penal sum, not less than ten thousand dollars, as is fixed by the governor. Such bond and oath shall be filed in the office of the secretary of state.

The director of each department may, with the approval of the governor, require any chief of a division, or any officer or employee in his department, to give bond in such amount as the governor prescribes. Such bond or bonds may, in the discretion of the director, be individual, schedule, or blanket bonds. The premium on any bond required or authorized by this section may be paid from the state treasury.

R.C. 121.01(A) defines "department," as used in R.C. 121.01-.20, in the following manner: "'Department' means the several departments of state administration enumerated in section 121.02 of the Revised Code." Thus, if the ORSC is one of the several departments of state administration enumerated in R.C. 121.02 or if any of the offices of the ORSC are created under R.C. 121.02, R.C. 121.04, or R.C. 121.05, R.C. 121.11 is applicable to the ORSC. R.C. 121.02 creates the following departments: The Office of Budget and Management, Commerce, Administrative Services, Transportation, Agriculture, Natural Resources, Health, Industrial Relations, Human Services, Liquor Control, Public Safety, Mental Health, Mental Retardation and Developmental Disabilities, Insurance, Development, Youth Services, Rehabilitation and Correction, Environmental Protection Agency, Aging, and Alcohol and Drug Addiction Services. In addition, R.C. 121.02 and R.C. 121.05 create, respectively, the offices of director and assistant director in the aforementioned departments, while R.C. 121.04 creates other various offices within the departments of Commerce, Administrative Services, Agriculture, Natural Resources, Industrial Relations, Liquor Control, and Insurance. Therefore, since the ORSC is not one of the several departments of state administration enumerated in R.C. 121.02 and none of the offices of the ORSC is created under R.C. 121.02, R.C. 121.04, or R.C. 121.05, R.C. 121.11 is not applicable to the ORSC. See generally State ex rel. Boda v. Brown, 157 Ohio St. 368, 372, 105 N.E.2d 643, 646 (1952) ("the express mention of but one class of persons in a statute implies the exclusion of all others").

II. R.C. 125.01-.11, R.C. 125.16, R.C. 127.16, and 2 Ohio Admin. Code Chapter 123:5-1 Are Applicable to the ORSC

R.C. 125.01-.11, R.C. 125.16, R.C. 127.16, and 2 Ohio Admin. Code Chapter 123:5-1, in general, prescribe a centralized system of state purchasing, competitive bidding requirements and procedures, and annual inventories of state property. Pursuant to R.C. 125.02,

[e]xcept as to the adjutant general, the department of rehabilitation and correction as specified in division (C) of section 125.04 of the Revised Code, the general assembly, the bureau of workers' compensation, and institutions administered by boards of trustees, the department of administrative services ["DAS"] may purchase supplies and services(fn2) for the use of state agencies. (Emphasis and footnote added.)

R.C. 125.05 further provides:

No state agency shall purchase any supplies or services except as provided in divisions (A) to (C) of this section.

(A) Any state agency may, without competitive selection, make any purchase of services that cost twenty-five thousand dollars or less or any purchase of supplies that cost ten thousand dollars or less. The agency may make the purchase directly or may make the purchase from or through the department of administrative services, whichever the agency determines.

(B) A state agency wanting to purchase services that cost more than twenty-five thousand dollars or supplies that cost more than ten thousand dollars shall, unless otherwise authorized by law, make the purchase from or through the department. Except where the purchase will be made from another state agency or is required to be made in accordance with sections 4115.31 to 4115.35 of the Revised Code, the department shall make the purchase by competitive sealed bidding under section 125.07 of the Revised Code or with controlling board approval. If the director determines that it is not possible or not advantageous to the state for the department to make the purchase, the department shall grant the agency a release and permit under section 125.06 of the Revised Code to make the purchase.

(C) An agency that has been granted a release and permit to make a purchase may make the purchase without competitive selection if after making the purchase the cumulative purchase

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