Eydie Glasstetter, Appellant-Appellant, v. Rehabilitation Services Commission, Appellee-Appellee.
No. 13AP-932
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
July 8, 2014
[Cite as Glasstetter v. Rehab. Servs. Comm., 2014-Ohio-3014.]
O‘GRADY, J.
(C.P.C. No. 12CV-6172) (REGULAR CALENDAR)
Rendered on July 8, 2014
James E. Melle, for appellant.
Michael DeWine, Attorney General, and Joseph Rosenthal, for appellee.
APPEAL from the Franklin County Court of Common Pleas
O‘GRADY, J.
{1} Appellant-appellant, Eydie Glasstetter, appeals from the judgment of the Franklin County Court of Common Pleas affirming an order of the State Personnel Board of Review (“SPBR“) in which the SPBR found it lacked jurisdiction to consider Glasstetter‘s administrative appeals of actions taken by her former employer, the Rehabilitation Services Commission (“RSC“).1 For the reasons that follow, we affirm.
I. Factual and Procedural Background
A. Glasstetter‘s State Employment2
{3} In April 2006, John M. Connelly, the executive director at RSC, told Glasstetter he wanted to redesignate her position as unclassified. Connelly was the appointing authority for RSC. Connelly concluded based on the duties performed by Glasstetter in her HRA3 job, she was in the unclassified service, but had erroneously been designated as being in the classified service. Glasstetter claimed Connelly offered her the following choice—either (1) she could remain classified and RSC would hire another employee with the same classification and duties who would be above her, or (2) she could agree to the redesignation of the position as unclassified. Although she objected, Glasstetter ultimately consented to the redesignation.
B. Removal from State Employment and Appeals to SPBR
{4} A few days after Glasstetter was redesignated as an unclassified employee, Connelly requested that she be investigated. Glasstetter was subsequently notified she was the target of a disciplinary investigation. Through her attorney, Glasstetter then advised Connelly that she was exercising fallback rights to resume her classified position. Connelly rejected Glasstetter‘s claim that she was entitled to fallback rights. Later, Connelly notified Glasstetter that based on the investigative report, he was considering terminating her from RSC. Effective August 21, 2006, he did terminate her, and Glasstetter appealed the removal order to the SPBR.
{5} RSC issued another order in December 2006 specifying that based on the investigative report, Glasstetter had been removed from her position for cause pursuant to
{6} In February 2007, Glasstetter filed a comрlaint in the United States District Court for the Southern District of Ohio, Eastern Division, against RSC, Connelly, and another individual. Glasstetter v. Rehab. Servs. Comm., S.D.Ohio No. 2:07-cv-125, 2008 WL 886137 (Mar. 28, 2008) (”Glasstetter I“). In March 2008, the federal district court granted the defendants partial judgment on the pleadings. Id. In 2010, the court granted them summary judgment on the remainder of Glasstetter‘s claims. Glasstetter v. Rehab. Servs. Comm., S.D.Ohio No. 2:07-cv-125, 2010 WL 2465356 (June 14, 2010) (”Glasstetter II“).
D. Mandamus Case
{7} In January 2008, Glasstetter filed a complaint in this court for a writ of mandamus to compel RSC and Connelly to honor her fallback rights and reinstate her to the position of HRA3 in the classified service. State ex rel. Glasstetter v. Connelly, 179 Ohio App.3d 196, 2008-Ohio-5755, ¶ 1, 25 (10th Dist.) (”Glasstetter III“). We referred the matter to a magistrate, and in November 2008, we adopted the magistrate‘s decision and granted RSC and Connelly summary judgment. Id. at ¶¶ 2, 15. The Supreme Court of Ohio affirmed. State ex rel. Glasstetter v. Rehab. Servs. Comm., 122 Ohio St.3d 432, 2009-Ohio-3507, ¶ 1 (”Glasstetter IV“).
E. SPBR Appeals Post-Mandamus Action
{8} After the Supreme Court issued Glasstetter IV, the administrative law judges (“ALJs“) assigned to the SPBR appeals issued a procedural order. The ALJs found it necessary to conduct a hearing to resolve whether Glasstetter was in the classified service or not at the time of her removal in order to decide whether the SPBR had jurisdiction over her appeals. The ALJs stated an employee‘s job duties were the determinative factor in this analysis and limited the admission of evidence at the hearing to evidence related to Glasstetter‘s duties in the two years prior to her removal. Glasstetter contested this ruling on various grounds and argued she was in the classified service for reasons unrelated to her duties. After a review of Glasstetter‘s arguments, the ALJs found no compelling reason to set aside the procedural order.
{9} Glasstetter‘s appeals to the SPBR were consolidated, and one ALJ conducted the duties hearing, after which Glasstetter proffered information for the
{10} Glasstetter filed an appeal in the Franklin County Court of Common Pleas under
II. Assignments of Error
{11} Glasstetter appeals and presents this court with four assignments of error for our review:
- The trial court abused its discretion in concluding that the order of the State Personnel Board of Review was supported by reliable, probative and substantial evidence and was in accordance with law.
- The trial court abused its discretion in concluding that Appellant was hired into a position that was wrongfully listed as classified or misidentified as classified.
- The trial court erred in refusing to find that, pursuant to
R.C. 124.271 , Appellant was a permanent employee in the classified service. - The trial court erred in finding that the Order of the State Personnel Board of Review is in accordance with law because:
- The SPBR Scope of Hearing Order unlawfully restricted the scope of the hearing to an examination of Appellant‘s duties and responsibilities while excluding evidence and legal argument that Appellant remained a classified employee and that she was improperly removed from the classified service.
- The SPBR failed to apply issue preclusion and/or law of the case doctrine to govern the scope of the Appellant‘s SPBR hearing.
Once an employee attains permanent status pursuant to R.C. 124.271 , she cannot be removed without following the procedures for such removals underR.C. 124.34 .- O.A.C. 124-1-02(C) conflicts with
R.C. 124.11(A)(9) and with O.A.C. 123:1-47-01(A)(8) and when all are applied to an employee of the Rehabilitation Services Commission the result is an administrative decision which is illogical, inconsistent, based upon improper inferences and unlawful. - O.A.C. 124-1-04(A) and O.A.C. 124-1-04(B) bar any change in Appellant‘s classified status and SPBR erred in failing to apply those rules in this case and the Common Pleas Court erred in not addressing the issue.
- Appellant was denied due process of law by the SPBR Scope of Hearing Order.
{12} Glasstetter uses headings in the argument section of her appellate brief, but the headings do not mirror the assigned errors, and many of her arguments seem applicable to more than one assigned error. Under App.R. 12(A)(2), we may choose to disregard any assignment of error an appellant fails to separately argue. See State v. Hubbard, 10th Dist. No. 11AP-945, 2013-Ohio-2735, ¶ 15. However, in the interest of justice, we have thoroughly reviewed Glasstetter‘s arguments and attempted to organize them in relation to the assigned errors.
III. DISCUSSION
A. Standard of Review
{13} ” ‘In an administrative appeal pursuant to
(1) “Reliable” evidence is dependable; that is, it can be confidently trusted. In order to be reliable, there must be a reasonable probability that the evidence is true.
(2) “Probative” evidence is evidence that tends to prove the issue in question; it must be relevant in determining the issue.
(3) “Substantial” evidence is evidence with some weight; it must have importance and value.
(Footnotes deleted.) Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio St.3d 570, 571 (1992).
{14} The common pleas court‘s ” ‘review of the administrative record is neither a trial de novo nor an appeal on questions of law only, but a hybrid review in which the court “must appraise all the evidence as to the credibility of the witnesses, the probative character of the evidence, and the weight thereof.” ’ ” Akron v. Ohio Dept. of Ins., 10th Dist. No. 13AP-473, 2014-Ohio-96, ¶ 19, quoting Lies v. Ohio Veterinary Med. Bd., 2 Ohio App.3d 204, 207 (1st Dist.1981), quoting Andrews v. Bd. of Liquor Control, 164 Ohio St. 275, 280 (1955). The court “must give due deference to the administrative determination of conflicting testimony, including the resolution of credibility conflicts.” ATS Inst. of Technology v. Ohio Bd. of Nursing, 10th Dist. No. 12AP-385, 2012-Ohio-6030, ¶ 29, citing Crumpler v. State Bd. of Edn., 71 Ohio App.3d 526, 528 (10th Dist.1991). The court must defer to the agency‘s findings of fact unless they are ” ‘internally inconsistent, impeached by evidence of a prior inconsistent statement, rest upon improper inferences, or are otherwise unsupportable.’ ” Kimbro v. Ohio Dept. of Adm. Servs., 10th Dist. No. 12AP-1053, 2013-Ohio-2519, ¶ 7, quoting Ohio Historical Soc. v. State Emp. Relations Bd., 66 Ohio St.3d 466, 471 (1993). However, the common pleas court reviews legal questions de novo. Akron at ¶ 19, citing Ohio Historical Soc. at 471.
{15} Our review is more limited than that of the common pleas court. Smith v. State Med. Bd. of Ohio, 10th Dist. No. 12AP-234, 2012-Ohio-4423, ¶ 13. “In reviewing the court of common pleas’ determination that the board‘s order was supported by rеliable, probative, and substantial evidence, this court‘s role is limited to determining whether the court of common pleas abused its discretion.” Id., citing Roy v. Ohio State Med. Bd., 80 Ohio App.3d 675, 680 (10th Dist.1992). “An abuse of discretion occurs when a decision is unconscionable, unreasonable, or arbitrary.” Weiss v. State Med. Bd. of Ohio, 10th Dist. No. 13AP-281, 2013-Ohio-4215, ¶ 15, citing State ex rel. Nese v. State Teachers Retirement Bd. of Ohio, 136 Ohio St.3d 103, 2013-Ohio-1777, ¶ 25. On the question of whether the SPBR‘s order was in accordance with the law, our review is plenary. Id.,
B. The Civil Service System Generally
{16}
Appointments and promotions in the civil service of the state, the several counties, and cities, shall be made according to merit and fitness, to be ascertained, as far as practicable, by competitive examinations. Laws shall be passed providing for the enforcement of this provision.
{17} The legislature has enforced this constitutional provision by enacting
The civil service of the state * * * shall be divided into the unclassified service and the classified service.
(A) The unсlassified service shall comprise the following positions, which shall not be included in the classified service, and which shall be exempt from all examinations required by this chapter:
* * *
(9) The deputies and assistants of state agencies authorized to act for and on behalf of the agency, or holding a fiduciary or administrative relation to that agency * * *.
* * *
(B) The classified service shall comprise all persons in the employ of the state * * *, not specifically included in the unclassified service.
{18} As the Supreme Court has explained:
Positions in the classified service are those for which merit and fitness can be determined by examination. Employees in the classified service can only be removed for good cause and only after the procedures enumerated in
R.C. 124.34 and the rules and regulations thereunder are followed. Positions in the unclassified service require qualities that the General
Assembly has deemed are not determinable by examination. Employees in the unclassified service do not receive the protections afforded employees in the classified service.
{19} Under
The state personnel board of review shall exercise the following powers and perform the following duties:
(1) Hear appeals, as provided by law, of employees in the classified state service from final decisions of appointing authorities or the director of administrative services relative to reduction in pay or position, job abolishments, layoff, suspension, discharge, assignment or reassignment to a new or different position classification, or refusal of the director, or anybody authorized to perform the director‘s functions, to reassign an employee to another classification or to reclassify the employee‘s position with or without a job audit under division (D) of section 124.14 of the Revised Code.
(Emphasis added). Thus, under this provision, the SPBR may hear appeals of employees in the classified state service under certain circumstances. The SPBR lacks jurisdiction to hear appeals from unclassified employees. Baker v. Columbiana Cty. Aud., 10th Dist. No. 03AP-552, 2004-Ohio-839, ¶ 11, citing
C. The SPBR‘s Order was in Accordance with Law
{20} Under her first assignment of error, Glasstetter generally contends, in part, that the common pleas court erred when it found the SPBR‘s order in accordance with law. Under her fourth assignment of error, Glasstetter specifies the court erred when it found the SPBR‘s order in accordance with law because: (1) the scope of the hearing before the ALJ was too narrow, (2) she was in the classified service as a matter of law by virtue of former versions of
{21} RSC maintains Glasstetter was an employee in the unclassified service pursuant to
When an employee has been adversely affected as an unclassified employee, the burden of proving the unclassified status of the employee is on the appointing authority. The board will take evidence of the employee‘s duties over a reasonable period of time, which is generally defined as at least two calendar years immediately prior to the adverse action, provided that the employee was in an active work status during that time period.
{22} This focus on duties is consistent with the Supreme Court‘s “longstanding precedent that the job title or position classification used by the appointing authority is not dispositive on the issue whether a public employee is in the classified or unclassified service and that the true test requires an examination of the duties actually delegated to and performed by the employee.” State ex rel. Barley v. Ohio Dept. of Job & Family Servs., 132 Ohio St.3d 505, 2012-Ohio-3329, ¶ 22, citing In re Termination of Emp. of Pratt, 40 Ohio St.2d 107, 113-14 (1974); State ex rel. Emmons v. Guckenberger, 131 Ohio St. 466, 469 (1936) (“However, it must be clear that a mere title is not at all conclusive. The true test is the duty actually delegatеd to and performed by an employee.“); and Yarosh at paragraph two of the syllabus (“The State Personnel Board of Review has jurisdiction over appeals from removals of public employees if it determines that such employees are in the classified service, regardless of how they have been designated by their appointing authorities.“).
{23} Nonetheless, Glasstetter argues the scope of the hearing in her case was unlawfully restricted to an examination of her job duties. She contends the SPBR violated the law of the case doctrine, the doctrine of issue preclusion, and her due process rights by barring her from presenting other evidence and arguments at the hearing regarding her status as an employee in the classified service and improper removal from that service.
a. Background Information
{24} Before we address the merits of Glasstetter‘s contentions, it is necessary to examine the mandamus action in more depth. Again, Glasstetter previously sought a writ
“An appointing authority whose employees are paid directly by warrant of the auditor of the state may appoint a person who holds a certified position in the classified service within the appointing authority‘s agency to a position in the unclassified service within that agency. A person appointed pursuant to this division to a position in the unclassified service shall retain the right to resume the position and status held by the person in the classified service immediately prior to the person‘s appointment to the position in the unclassified service, regardless of the number of positions the person held in the unclassified service. Reinstatement to a position in the classified service shall be to a position substantially equal to that position in the classified service held previously, as certified by the director of administrative services.”
Glasstetter IV at ¶ 18, quoting 2000 Sub.S.B. No. 173, 148 Ohio Laws, Part IV, 9392-9393.
{25} This court found Glasstetter had no fallback rights under
{26} The Supreme Court recognized Glasstetter raised various other claims in the mandamus action, “including that she could not have been redesignated as an unclassified
b. Law of the Case and Issue Preclusion
{27} The law of the case doctrine provides “the decision of a reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceеdings in the case at both the trial and reviewing levels.” Nolan v. Nolan, 11 Ohio St.3d 1, 3 (1984), citing Gohman v. St. Bernard, 111 Ohio St. 726, 730 (1924), rev‘d on other grounds, New York Life Ins. Co. v. Hosbrook, 130 Ohio St. 101 (1935). The doctrine is “a rule of practice rather than a binding rule of substantive law and will not be applied so as to achieve unjust results.” Id., citing Gohman at 730-31. “However, the rule is necessary to ensure consistency of results in a case, to avoid endless litigation by settling the issues, and to preserve the structure of superior and inferior courts as designed by the Ohio Constitution.” Id., citing State ex rel. Potain, v. Mathews, 59 Ohio St.2d 29, 32 (1979). In pursuit of these goals, the law of the case doctrine “functions to compel trial courts to follow the mandates of reviewing courts.” Id. Thus, “[a]bsent extraordinary circumstances, * * * an inferior court has no discretion to disregard the mandate of a superior court in a prior appeal in the same case.” Id. at syllabus, following Potain at 32. Whether the law of the case doctrine applies in a particular situation constitutes a question of law. DeAscentisi v. Margello, 10th Dist. No. 08AP-522, 2008-Ohio-6821, ¶ 12.
{28} “The doctrine of res judicata has two aspects: claim preclusion and issue preclusion.” Arth Brass & Aluminum Castings, Inc. v. Ryan, 10th Dist. No. 07AP-811, 2008-Ohio-1109, ¶ 8, citing Grava v. Parkman Twp., 73 Ohio St.3d 379, 380 (1995). “Issue preclusion, also known as collateral estoppel, provides that ‘a fact or a point that was actually and directly at issue in a previous action, and was passed upon and
{29} Glasstetter interprets the statement in Glasstetter IV that she had “an adequate remedy by her pending appeals to the SPBR * * * to raise her claims that she remained a classified employee and that she was improperly removed from the classified service” as a ruling that in her SPBR appeals, she is entitled to a hearing on any arguments she wished to make regarding her status and removal. Glasstetter IV at ¶ 28. She argues issue preclusion and the law of the case doctrine obligate the SPBR to provide her with such a heаring. However, the scope of Glasstetter‘s hearing before the SPBR was not at issue in Glasstetter IV. In Glasstetter IV, the Supreme Court simply recognized the SPBR was the appropriate tribunal to determine Glasstetter‘s status at the time of her removal and, if she was classified, the propriety of her removal. If Glasstetter disagreed with the SPBR‘s rulings, as the Supreme Court pointed out, she could file an appeal in the common pleas court, which she did.
{30} In any event, Glasstetter was able to preserve her non-duty related arguments via a pre-hearing motion, a post-hearing proffer, and her objections to the ALJ‘s report. The SPBR thoroughly reviewed the record before adopting the ALJ‘s recommendation. Thus, the SPBR did consider and reject Glasstetter‘s non-duty related arguments about her status and removal even though the SPBR did not make specific findings with regard to them. As we explain below, the specific non-duty related arguments identified in her appeal to this court lack merit. These аrguments did not warrant a hearing.
c. Due Process
{31} Glasstetter also makes a due process challenge to the scope of the hearing. “Both the Fourteenth Amendment to the United States Constitution and Section 16, Article I of the Ohio Constitution require that administrative proceedings comport with due process.” Richmond v. Ohio Bd. of Nursing, 10th Dist. No. 12AP-328, 2013-Ohio-110, ¶ 10, citing Mathews v. Eldridge, 424 U.S. 319 (1976); Doyle v. Ohio Bur. of Motor
{32} A ” ‘fundamental requirement of due process is the opportunity to be heard “at a meaningful time and in a meaningful manner.” ’ ” Natoli at ¶ 18, quoting Mathews at 333, quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965). “At its core, due process insists upon fundamental fairness, and the requirement to conduct a hearing implies that a fair hearing must occur.” Id., citing Lassiter v. Dept. of Social Servs., 452 U.S. 18, 24 (1981), and Clayman v. State Med. Bd., 133 Ohio App.3d 122, 127 (10th Dist.1999). But, above all, ” ‘[d]ue process is flexible and calls for such procedural protections as the particular situation demands.’ ” Id., quoting Mathews at 334, quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972). The question of whether the due process requirements have been satisfied рresents a legal question. See Slorp v. Dept. of Adm. Servs., 10th Dist. No. 97APE08-1136 (Apr. 30, 1998).
{33} Glasstetter suggests any limitations on the scope of the hearing before the ALJ violated her due process rights. However, the duties hearing was consistent with longstanding precedent that the “true test” of whether a public employee is in the classified or unclassified service “requires an examination of the duties actually delegated to and performed by the employee.” Barley at ¶ 22. The scope of the hearing was appropriate to the issue at hand, i.e., whether Glasstetter was in fact classified at the time of her removal and able to invoke the jurisdiction of the SPBR. Again, as we explain below, the specific non-duty related arguments Glasstetter identified in her appeal to this court are meritless and did not warrant a hearing.
{34} Additionally, Glasstetter claims she was “unlawfully prevented” from “making a record on the constitutional issues raised by her prehearing motion.” (Appellant‘s Brief, 20.) She complains that without this rеcord, she cannot argue the merits of her “constitutional issues” but, instead, can only argue the SPBR “erred in failing to allow her to make a record and hear her claims.” (Appellant‘s Brief, 20.) Though unclear, it appears Glasstetter is arguing that she wanted to make constitutional
2. Glasstetter‘s Non-Duty Based Arguments Regarding her Employment Status
a. Issue Preclusion
{35} Glasstetter directs our attention to the Supreme Court‘s statement in the mandamus action that she was “never appointed to a position in the unclassified service.” Glasstetter IV at ¶ 20. She claims the court implicitly found she was always in the classified service, and issue preclusion prevents RSC from challenging that finding. However, Glasstetter takes the court‘s stаtement out of context. The court did not determine whether her HRA3 position was in fact classified or unclassified. Rather, the court determined
b. R.C. 124.271
{36} Glasstetter contends she became an employee in the classified service by virtue of the version of
Any employee in the classified service of the state * * * who is appointed provisionally to fill a vacancy and who remains in provisional status in the same classification or classification series for a period of two years of continuous service, during which period no competitive examination is held, becomes a
permanent appointee in the classified service at the conclusion of such two-year period.
1995 Sub.S.B. No. 99.3
{37} Glasstetter suggests she became an “employee in the classified service of the state” for purposes of
{38} Under Glasstetter‘s reasoning, if DAS records mistakenly identify an unclassified employee as a provisional employee and no one catches the mistake for two years, the employee becomes a permanent classified employee. The employee can only be removed under
{39} However, ” ‘[i]t is a well-settled rule of statutory interpretation that statutory provisions be construed together and the Revised Code be read as an interrelated body of law.’ ” Summerville v. Forest Park, 128 Ohio St.3d 221, 2010-Ohio-6280, ¶ 24, quoting State v. Moaning, 76 Ohio St.3d 126, 128 (1996). We will not assume the legislature explicitly defined unclassified and classified service positions in
{41} Moore stemmed from events that occurred because of a law enforcement leadership crisis in the city of Zanesville. To install new leadership quickly, the city petitioned its civil service commission to suspend the competitive examination requirements of
{42} In Yarosh, a sheriff terminated several deputy sheriffs hired by his predecessor. The sheriff viewed the deputies as unclassified. Yarosh at 9. Evidently, the sheriff‘s predecessor shared that belief because he did not appoint the deputies based on examination results. Id. When the deputies contested their termination, the sheriff argued the SPBR lacked jurisdiction to hear the appeals because the deputies were
A deputy who is not appointed to a position in the classified service due to the neglect of a sheriff to initiate the proper appointment procedure pursuant to
R.C. 124.27 is, at the very least, a provisional employee in the classified service at the time of his appointment, and after two years of such service attains permanent status pursuant toR.C. 124.271 . Once a deputy attains permanent status, a sheriff cannot remove him without following the procedures for such removals underR.C. 124.34 .
Id. at paragraph five of the syllabus.
{43} Glasstetter contends paragraph two of the syllabus in Yarosh does not apply to her because there is “no uncertainty” that she was placed in a classified position at RSC as evidenced by DAS records. (Appellant‘s Brief, 29.) Thus, she argues paragraph five of the syllabus in Yarosh proves she became a permanent classified employee under
{44} Though unclear, Glasstetter appears to claim her DAS records, at the very least, create a presumption she was in the permanent classified service as of 2000. She argues RSC did not present evidence that the HRA3 job posting and her DAS records
{45} However, in the mandamus action the Supreme Court found “throughout her employment with [RSC], Glasstetter remained in the same position—[HRA3]—with the same job duties.” Glasstetter IV at ¶ 20. Glasstetter does not refute this finding and has argued issue preclusion prevents it from being questioned in the present matter. Glasstetter is correct. Thе issue of whether her duties at RSC changed was a fact or point actually and directly at issue in the mandamus action involving herself and RSC and was passed upon by a court of competent jurisdiction. See Arth Brass at ¶ 8, quoting Fort Frye at 395. Thus, if Glasstetter‘s duties in the two years before her removal rendered her unclassified under
{46} The SPBR found based on her duties in the two-year look back period, Glasstetter was in the unclassified service under
c. Former Ohio Adm.Code 124-1-04
{47} Next, Glasstetter claims any change to her classified status was barred by a former version of
(A) An appointing authority is estopped to raise the illegal appointment of an employee to defeat the tenure rights which would have been due that employee had he been lawfully appointed.
(B) After two years of service in a position in the classified service, an employee may become automatically certified under the provisions of section 124.271 of the Revised Code, notwithstanding the impropriety of his appointment.
“Appointment” means “placement of an employee in a position.”
d. Other Arguments
{49} Glasstetter сlaims if we affirm the SPBR‘s order, the distinction between classified and unclassified employees would become meaningless. An employer could change an employee‘s designation at any time, and the employee could not appeal the change to the SPBR. Glasstetter complains nothing in
{50} Glasstetter is correct we previously found the SPBR cannot hear an appeal arising solely from a change in an employee‘s status from classified to unclassified without any other changes in the employee‘s position. Kittrells v. Ohio Lottery Comm., 10th Dist. No. 93APE08-1176 (Mar. 22, 1994). The employee must demonstrate a resulting adverse employment action to trigger SPBR‘s jurisdiction under
{51} Additionally, Glasstetter argues if we affirm the SPBR‘s order, individuals who apply for jobs posted as “classified” can never trust that designation and rely on it to make important life decisions, even after eight years of service. While we are sympathetic to Glasstetter‘s argument, we are bound by the precedent set forth in Barley that title or position classification used by appointing authority is not dispositive on the issue of
3. Interpretation of R.C. 124.11(A)(9)
{52} The ALJ and the SPBR found Glasstetter was in the unclassified service under
(C) “Administrative relationship” generally means a relationship where an employee has substantial authority to initiate discretionary action and/or in which the appointing authority must rely on the employee‘s personal judgment and leadership abilities. The average employee would not possess such qualities or be delegated such discretionary authority. Whether one position occupies an administrative relationship to another is a question of fact to be determined by the board.
* * *
(I) “Fiduciary relatiоnship” generally means a relationship where the appointing authority reposes a special confidence and trust in the integrity and fidelity of an employee to perform duties which could not be delegated to the average employee with knowledge of the proper procedures. These qualifications are over and above the technical competency requirements to perform the duties of the position. Whether one position occupies a fiduciary relationship to another is a question of fact to be determined by the board.
(Emphasis added).
{53} The ALJ also referenced
{55} However, the ALJ ultimately evaluated the relationship between RSC and Glasstetter and analyzed whether RSC relied on her personal judgment and leadership abilities. Glasstetter does not contend the ALJ was incorrect that if RSC relied on those qualities, an administrative relation exists for purposes of
4. Summary
{56} For the foregoing reasons, we find the SPBR‘s order was in accordance with law. We overrule the third and fourth assignments of error and the first assignment of error to the extent it challenges the legality of the SPBR‘s order.
{57} In the remainder of her first assignment of error and in her second assignment of error, Glasstetter contends the trial court abused its discretion in finding the SPBR‘s order supported by reliable, probative, and substantial evidence.
{58} The ALJ made the following conclusions pertinent to our analysis:
Testimony presented at record hearing indicated that [Glasstetter] had the authority to contractually bind the agenсy to contracts under $50,000, and had some discretion to define the terms of such contracts; I find that duties of this nature required [RSC] to rely on [Glasstetter‘s] personal judgment, see, Rarick v. Bd. of Cty. Commrs. (1980), 63 Ohio St.2d 34, and are characteristic of an employee who holds an administrative relation to an agency. [Glasstetter] also had oversight of the Human Resources Department and its employees. She was responsible for assigning work, evaluating employee performance, and ensuring that assignments were completely in a timely and appropriate manner. Performance of such duties would require [Glasstetter] to carry out agency policy in the supervision of her subordinates; I find that responsibilities of this nature necessitated [RSC‘s] reliance on [Glasstetter‘s] personal judgment and leadership qualities, and are characteristic of an administrative relationship. Yarosh v. Becane (1980), 63 Ohio St.2d 5.
[Glasstetter] had oversight of her departmental budget and monitored expenditures to ensure compliance. She was a member of participated in the discussions of a number of higher management level committees, relaying information and advising committee members regarding Human Resources related issues. I find that these duties required [Glasstetter] to exercise her personal judgment.
The duties performed by [Glasstetter] during the two-year time period examined at record hearing while not demonstrating a reliance by the agency on her personal integrity or fidelity sufficient to constitute a fiduciary relationship, did require the agency to rely on her personal judgment and leadership skills. Accordingly, I find [RSC] has demonstrated by a preponderance of the evidence that [Glasstetter] had an administrative relation to the agency.
(R. 17, Record of Proceedings.)
{60} Next, Glasstetter complains the ALJ and SPBR erred in finding her authоrity to bind RSC to contracts under $50,000 and limited discretion to define the terms of such contracts constituted evidence she had an administrative relation to RSC. She argues the Supreme Court‘s decision in Rarick v. Bd. of Cty. Commrs., 63 Ohio St.2d 34, 37 (1980), compels the opposite conclusion.5 In Rarick, the Supreme Court analyzed whether the Raricks, Geauga County‘s former building service superintendent and assistant superintendent, were in a fiduciary or administrative relationship with the county commissioners such that the Raricks were in the unclassified service. The court stated that “[d]uties which are closely supervised by the appointing authority do not place a position in a fiduciary or administrative relationship with the authority; no special confidence and trust in an employee‘s abilities and integrity is involved.” Rarick at 37. The court went on the find that the Raricks’ ability to contract out for snow removal services, even to themselves, did not place them in either a fiduciary or administrative relationship with the commissioners. Id. However, the Raricks still had two duties that
{61} Glasstetter argues from Rarick, it is apparent an employee does not have an administrative relation to an agency solely because the employee has authority to make a contract on the agency‘s behalf, even with herself. She argues blanket purchase orders like the Raricks greatly differ from the types of contracts she could make at RSC. However, the snow removal contracts in Rarick were subject to approval by the commissioners. Id. at 34. In contrast, with blanket purchases orders, the Raricks could purchase supplies whenever they chose and did not have to account for their expenditures until after the money was spent, requiring trust in their honesty and judgment. Id. at 38-39. In the absence of evidence the contracts Glasstetter had authority to make were subject to approval, those contracts are more akin to the blanket purchase orders in Rarick than the snow rеmoval contracts. Glasstetter‘s ability to enter into and, to some extent, write the terms of contracts on behalf of RSC supports the finding she had an administrative relation to the RSC.
{62} Additionally, as the common pleas court noted, the ALJ and the SPBR did not solely rely on Glasstetter‘s contracting authority to conclude she had an administrative relation to RSC. Instead, they relied on additional evidence on matters such as her oversight of the Human Resources Department and participation in higher management level committees. Glasstetter does not specifically challenge any of these findings. She generally argues her work at RSC was closely supervised, so she could not have an administrative relation to RSC. However, the only evidence she points to of this close supervision is her own testimony, which the SPBR was free to disbelieve. See ATS Inst. of Technology at ¶ 29, citing Crumpler at 528 (explaining the deference the common pleas court must give an administrative determination of credibility).
{63} Glasstetter also argues the common pleas court erred in stating she was hired into a position that was wrongfully listed as classified. Even though the ALJ and the SPBR did not explicitly make this finding, as we explained above, such a finding is implicit and correct. Therefore, we find no error in the court‘s statement.
IV. Conclusion
{65} Having overruled each of the assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
KLATT and DORRIAN, JJ., concur.
Judgment affirmed.