2020 Ohio 681
Ohio Ct. App.2020Background
- Kathy Tarrier was hired by the Franklin County Public Defender in 1987 and, because the office treated employees as non‑public, did not contribute to OPERS until January 1, 1999 after Mallory litigation.
- As of December 31, 2002 Tarrier had fewer than five years of OPERS contributing service, so under R.C. 145.191 she was eligible to elect one of the new plans; she electronically elected the Combined Plan on May 27, 2003 (effective Jan. 1, 2003), an election made irrevocable by R.C. 145.191(E).
- In 2016 the Ohio Supreme Court’s decision in Altman‑Bates awarded Tarrier 11.25 years of noncontributing PERS service credit for her 1987–1998 service; Franklin County remitted delinquent employee and employer contributions under R.C. 145.483.
- Tarrier requested OPERS retroactively to place her in the Traditional Pension Plan effective to her 1987 hire date; OPERS denied, citing lack of statutory authority to unwind her 2003 irrevocable election and rules governing crediting of delinquent contributions.
- Tarrier filed an original action for a writ of mandamus seeking to compel OPERS to retroactively change her plan; a magistrate recommended granting relief, but the court of appeals independently reviewed and denied the writ.
Issues
| Issue | Tarrier's Argument | OPERS' Argument | Held |
|---|---|---|---|
| Validity of 2003 election given later Altman‑Bates service credit | Election was legally impermissible because Tarrier effectively already held >5 years of service (inchoate Altman‑Bates right) and thus could not lawfully elect out of the Traditional Plan | On Dec. 31, 2002 Tarrier had <5 years of contributing service and so was statutorily eligible to elect; the election was valid and irrevocable under R.C. 145.191(E) | Court held the election was lawful and irrevocable; Altman‑Bates after the fact does not retroactively invalidate the 2003 election |
| Authority to retroactively change plan status | OPERS should be ordered to retroactively place Tarrier in the Traditional Plan to reflect her service as a public employee since 1987 | No statute authorizes OPERS to retroactively undo an R.C. 145.191 election; OPERS has no authority beyond statutes | Court held no statutory authority permits OPERS to unwind the 2003 election; mandamus denied |
| Crediting of employer‑paid delinquent contributions | Employer contributions for pre‑1999 service should be credited to the Traditional Plan (or to Tarrier’s defined‑contribution account) if she is placed back in that plan | Ohio Adm.Code 145‑1‑31 and R.C. 145.23 require employer payments under R.C. 145.483 be credited to the employers’ accumulation (defined‑benefit) fund and to the plan in which the member is contributing when payment is made | Court held OPERS correctly credited those amounts to the defined‑benefit portion of Tarrier’s Combined Plan account under the administrative rule and statute |
| Equitable/fiduciary claims (promissory estoppel, breach of fiduciary duty) | OPERS’ administration is unfair and equity/fiduciary remedies should permit relief | Mandamus is a statutory remedy requiring clear legal right/duty; equitable claims are not a substitute for statutory authorization | Court declined to apply equitable doctrines in mandamus; such arguments do not establish a legal duty to act |
Key Cases Cited
- Mallory v. Pub. Emps. Retirement Bd., 82 Ohio St.3d 235 (1998) (employees of Franklin County Public Defender who worked on or before Dec. 31, 1984 are public employees entitled to PERS credit)
- Van Dyke v. Pub. Emps. Retirement Bd., 99 Ohio St.3d 430 (2003) (carryover doctrine does not grant PERS credit for reemployment beginning after incorporation when prior service was not continuous)
- State ex rel. Davis v. Pub. Emps. Retirement Bd., 120 Ohio St.3d 386 (2008) (PERB abused discretion by applying collateral estoppel based on Van Dyke; administrative determinations must be adjudicated on the merits)
- Altman‑Bates v. Pub. Emps. Retirement Bd., 148 Ohio St.3d 21 (2016) (employees hired while Kura held statutory office were public employees and entitled to PERS service credit for pre‑1999 service)
- State ex rel. Pipoly v. State Teachers Retirement Sys., 95 Ohio St.3d 327 (2002) (mandamus is appropriate to correct an administrative abuse of discretion when no statutory appeal exists)