State v. Buckeye Electric Co.

J. P. Celebrezze, J. The issue presented by this appeal is whether the Department of Industrial Relations (“department”) has exclusive primary authority to enforce the provisions of R.C. 4115.03 to 4115.16 or whether the [253] prosecuting attorney has independent authority to prosecute criminal violations of the prevailing wage statutes. This question turns on whether various provisions of R.C. Title 41 operate as an implied partial repeal of the statutory authority of the prosecutor to bring criminal proceedings on behalf of the state. We find no such repeal and therefore hold that the prosecuting attorney has independent authority to prosecute criminal violations of R.C. 4115.03 to 4115.16. Accordingly, we reverse and remand to the trial court for further proceedings. R.C. 309.08, which empowers the prosecuting attorney to bring criminal actions, provides in part: “The prosecuting attorney may inquire into the commission of crimes within the county and shall prosecute, on behalf of the state, all complaints, suits, and controversies in which the state is a party * * R.C. 4115.99 is a criminal statute.1 As such, its enforcement comes within the authority of the prosecutor, unless otherwise provided. R.C. 4115.10(E) empowers the department to “enforce sections 4115.03 to 4115.16 of the Revised Code.” Included within the specified sections are those which provide for the civil and administrative procedures for securing compliance with the prevailing wage laws. Noticeable by its absence is R.C. 4115.99, the criminal penalty section. Nevertheless, appellee maintains that the provisions of R.C. 4115.03 to 4115.16 manifest a legislative intent that the department have exclusive primary authority over all the prevailing wage statutes and, in addition, that criminal sanctions are to be sought only after the unsuccessful exhaustion of administrative remedies, and then only upon the request of the Director of Industrial Relations. R.C. 4115.03 to 4115.16 set forth requirements relating to the payment of the prevailing wage on public works projects, and also provide a comprehensive framework for securing compliance with such provisions. R.C. 4115.032, 4115.071(D), 4115.14 and 4115.15 relate to the authority of the department to take action to secure compliance with the prevailing wage laws. R.C. 4115.10 and 4115.13 relate to the authority of the department to bring actions to obtain compensation for employees who were paid less than the prevailing wage. R.C. 4115.16 provides a procedure whereby certain adversely affected parties may institute proceedings to secure compliance and compensation when the department has failed to take appropriate action. The foregoing sections provide a comprehensive and uniform system under which the department is initially responsible for securing compliance and compensation through administrative and civil proceedings. We do not believe, however, that the express provision of a central role [254] for the department in civil proceedings necessarily implies exclusive authority over criminal proceedings as well. A comprehensive system of administrative remedies for the purpose of securing compensation or future compliance is not inconsistent with the existence of a separate and independent remedy for the separate purpose of punishing criminal violations. If the legislature had intended to grant exclusive primary authority to the department to enforce the criminal provisions, it would have so stated.2 Accordingly, we hold that the prosecuting attorney has authority to prosecute criminal violations of R.C. 4115.03 to 4115.16 independent of the civil investigative and enforcement jurisdiction of the Department of Industrial Relations.3 For the foregoing reasons, we reverse the judgment of the court of appeals and remand the cause to the trial court for further proceedings. Judgment reversed and cause remanded. Celebrezze, C.J., Sweeney and C. Brown, JJ., concur. W. Brown and Holmes, JJ., concur separately. Locher, J., dissents. Footnotes [1] R.C. 4115.99 provides: “(A) Whoever violates section 4115.08 or 4115.09 of the Revised Code shall be fined not less than twenty-five nor more than five hundred dollars. “(B) Whoever violates division (C) of section 4115.071, section 4115.10, or 4115.11 of the Revised Code is guilty of a misdemeanor of the second degree for a first offense; for each subsequent offense such person is guilty of a misdemeanor of the first degree.” [2] Appellee also finds support for its proposition in two sections of the enabling legislation for the department, R.C. Chapter 4101. The first, R.C. 4101.02, provides in part: “The department of industrial relations shall: “(B) Administer and enforce the general laws of this state * * * relating to the erection, repair, alteration, or painting of buildings and structures * * * ai\d all other laws protecting the life, health, safety, and welfare of employees in employment * * *.” Assuming, arguendo, that this general grant of authority were to prevail over the specific grant of authority in R.C. 4115.10(E), and were applicable to the criminal penalty section, R.C. 4115.99, it would merely grant authority to the department concurrent with that granted to the prosecutor under R.C. 309.08. The prosecutor would still be possessed of independent authority to initiate criminal proceedings. The second section cited by appellee, R.C. 4101.09, provides in part: “Upon the request of the director, the attorney general or the prosecuting attorney in the county in which any investigation, hearing, or trial, had under sections 4101.01 to 4101.16, inclusive, of the Revised Code, and any of sections 4121.01 to 4121.29, inclusive, of the Revised Code, which are applicable, is pending, shall aid therein and prosecute, under the supervision of the department, all necessary actions or proceedings for the enforcement of such sections and all other laws of this state relating to the protection of life, health, safety, and welfare, and for the punishment of all violations thereof.” This section requires the prosecutor or Attorney General to bring an action when requested to do so by the department. It does not prohibit action by the prosecutor in the absence of a request by the department. [3] Appellee also challenges the sufficiency of the summons. Appellant maintains that this defense was waived by failing to raise it in a timely manner. Neither of these contentions was raised before the trial court. Accordingly, appellate review would be inappropriate.