2004 Ohio 6832 | Ohio Ct. App. | 2004
{¶ 2} Relator argues that the magistrate should have given deference to the interpretation of R.C.
{¶ 3} Relator cites the case of Northwestern Ohio Bldg. Constr. Council v. Conrad (2001),
{¶ 4} Conrad involved the issue whether, absent express legislative direction, the Bureau of Workers' Compensation ("BWC") may permissibly use state insurance fund ("SIF") proceeds to draw the funds necessary to make required administrative and performance-incentive payments to managed-care organizations ("MCOs") as part of the Health Partnership Program ("HPP") mandated by R.C.
{¶ 5} The Conrad court held that, when the legislature mandates that an agency administer a program, but leaves inevitable gaps in the statutes as to all of the details of the administration of the program, the agency may make rules in order to fill in these gaps. The court of appeals in Conrad had held that because the agency did not have the express legislative authority to use SIF monies to make payments to MCOs as part of the HPP, such use of the SIF was unconstitutional. The Supreme Court of Ohio reversed, finding that the BWC acted reasonably when it promulgated rules to flesh out the day-today workings of the mandated HPP. As part of the rationale for its holding, theConrad court set forth the following:
As the United States Supreme Court has noted, "the power of an administrative agency to administer a * * * program necessarilyrequires the formulation of policy and the making of rules tofill any gap left, implicitly or explicitly," by the legislature. (Emphasis added.) Morton v. Ruiz (1974),
Id. at 289. (Emphasis sic.)
{¶ 6} The Conrad court went on to determine that the BWC's use of SIF monies to pay MCOs was consistent with the permissible uses of the fund enumerated in R.C.
{¶ 7} Recently, in the case of Maitland v. Ford Motor Co.,
[C]ourts, when interpreting statutes, must give due deference to an administrative interpretation formulated by an agency which has accumulated substantial expertise, and to which thelegislature has delegated the responsibility of implementing thelegislative command. Therefore, under these circumstances, where the legislature has granted the authority to the Attorney General to adopt rules governing the informal dispute-resolution mechanisms, we defer to the Attorney General's policy on mileage setoffs.
Id. at ¶ 26. (Citations omitted.) (Emphasis added.)
{¶ 8} In the present case the SPBR's "interpretation" of R.C.
{¶ 9} Furthermore, we find R.C.
{¶ 10} As the Supreme Court of Ohio held long ago, in the case of Davis v. State ex rel. Pecsok (1936),
In proceedings in mandamus a court can not create a legal duty. The creation of a legal duty is a distinctive function of the legislative branch of government. The most that a court can do in mandamus is to command the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station, when a clear right to such performance is presented.
Id. at paragraph one of the syllabus. See, also, State ex rel.Pipoly v. State Teachers Retirement Sys.,
{¶ 11} "When an asserted legal right is based on a statutory provision, the relator must demonstrate that the statute, as applied and interpreted, gives rise to the requisite clear legal right." State ex rel. Deters v. Wilkinson (1995),
{¶ 12} Relator also argues that Ohio Adm. Code
{¶ 13} Finally, relator argues that the magistrate erred in rejecting his argument that the doctrine of res judicata precludes this court from reaching a result contrary to the SPBR's conclusion that relator has a clear legal right to exercise fallback rights. Relator argues that the doctrine precludes relitigation of the issue because the same was fully litigated by the parties before the SPBR and was determined by that tribunal.
{¶ 14} "Collateral estoppel, an aspect of res judicata,
prevents a question that has been actually and necessarily determined by a court of competent jurisdiction in a first cause of action from being relitigated between the same parties or their privies in a second, different cause of action." State exrel. Brookpark Entertainment, Inc. v. Cuyahoga Cty. Bd. ofElections (1991),
{¶ 15} Here, however, the SPBR's decision did not deal with the issue whether relator, while employed by the state in an unclassified capacity, may exercise fallback rights under R.C.
{¶ 16} We agree with the magistrate's conclusion that this case is similar to the case of Rabin v. Anthony Allega CementContractor, Inc. (Nov. 6, 2001), 10th Dist. No. 00AP-1200. In that case, this court held that statements of another tribunal will not be given preclusive effect when the statements were made in the course and context of deciding a wholly different issue than the one presented to the second tribunal; that is, when the statements amount to nothing more than "inartful dicta unnecessary to the [first tribunal's] judgment." Id., 2001 Ohio App. LEXIS 4921, at *25. In the present case, the SPBR's commentary regarding the effect of R.C.
{¶ 17} After an examination of the magistrate's decision, an independent review pursuant to Civ.R. 53, and due consideration of relator's objections, we overrule the same, and find that the magistrate correctly and appropriately determined the issues raised. Accordingly, we adopt the magistrate's decision as our own, and supplement the same with the additional findings and conclusions hereinabove, and deny the requested writ of mandamus.
Objections overruled; writ of mandamus denied.
KLATT and DESHLER, JJ., concur.
DESHLER, J., retired of the Tenth Appellate District, assigned to active duty under authority of Section
Jim Petro, Attorney General, Nicole S. Moss and Jack W.Decker, for respondents.
Findings of Fact:
{¶ 19} 1. Relator was hired by ODYS as an account clerk in August 1990. At the time, relator was a classified employee.
{¶ 20} 2. Between 1991 and 1998, relator was promoted several times, ultimately to the position Fiscal Officer 4.
{¶ 21} 3. Prior to October 24, 1999, all of relator's employment with ODYS was in the classified service.
{¶ 22} 4. By letter dated July 13, 1999, relator was appointed from the classified service to a position in the unclassified service as follows:
I want to thank you for agreeing to take the post of Bureau Chief over the Fiscal Management Bureau within the Division of Finance and Planning. * * *
This appointment is being made and accepted in accordance with Chapter 124 of the Ohio Revised Code. Even with this change you will remain in your current classification of Fiscal Officer 4 under the E-1 rate schedule and will, in accordance with Chapter 124 of the Ohio Revised Code, retain the right to resume the position you previously held, or a comparable position, in the classified service at Central Office as outlined in this section.
Relator assumed this position in October 1999.
{¶ 23} 5. In April 2001, relator was asked to serve as the Acting Deputy Director for ODYS's Division of Finance and Planning. Relator assumed the directorship on a permanent basis in December 2001.
{¶ 24} 6. On December 16, 2002, relator was offered the option of accepting a demotion to the unclassified position of Correctional Deputy Superintendent at Scioto Juvenile Correctional Facility in Delaware, Ohio, or resigning his position with ODYS. In accepting this transfer, relator signed a consent to voluntary transfer and demotion and noted as follows at the bottom:
I am signing this statement with the understanding that I will be able to research the right to fall back to my previous position in the classified service regardless of the number of classified positions I held.
{¶ 25} 7. On January 2, 2003, relator filed an appeal with the State Personnel Board of Review ("board"). The board noted that two questions were presented: (1) whether the board had jurisdiction to review the apparent denial of a request to exercise fall-back rights; and (2) whether relator should have been allowed to exercise his fall-back rights to resume a Fiscal Officer 4 classified position or similar position. Because the board determined that it did not have jurisdiction, relator's appeal was dismissed. In dicta, the administrative law judge determined that it appeared that, pursuant to R.C.
{¶ 26} 8. On October 8, 2003, relator filed the instant mandamus action in this court.
{¶ 27} 9. Both parties filed motions for summary judgment and memoranda contra.
{¶ 28} 10. Because the magistrate could not say that, as a matter of law, either party was entitled to judgment in their favor, the matter is currently before the magistrate upon relator's assertion that he had an absolute right to exercise his fall-back rights and that ODYS abused its discretion in refusing to permit him to resume his former position in the classified service.
{¶ 29} 11. In the event that this magistrate was to determine that ODYS did abuse its discretion, evidence will be presented as to the issue of damages.
{¶ 30} 12. This matter is currently before the magistrate on the merits.
Conclusions of Law:
{¶ 31} In this mandamus action, relator asserts that ODYS had a clear legal duty, in December 2002, to reassign him to his position as a Fiscal Officer 4 when ODYS offered him the option of accepting a demotion to the position of Correctional Deputy Superintendent at Scioto Juvenile Correctional Facility. As such, relator asserts that ODYS should be ordered to either reinstate him to the position of Deputy Director 5 or reinstate him to his classified job as Fiscal Officer 4.
{¶ 32} The Supreme Court of Ohio has set forth three requirements which must be met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to the relief prayed for; (2) that respondent is under a clear legal duty to perform the act requested; and (3) that relator has no plain and adequate remedy in the ordinary course of the law.State ex rel. Berger v. McMonagle (1983),
{¶ 33} R.C.
* * * 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. * * *
{¶ 34} Ohio Adm. Code
Unclassified appointments made pursuant to division (D) of section
{¶ 35} In asserting that he is entitled to a writ of mandamus, relator argues that he had an absolute right to resume his position in the classified service at any time upon his request. As such, when he indicated that he wanted to leave the unclassified service and return to the classified service, relator insists that ODYS was required to reinstate him to his position as a Fiscal Officer 4 in the classified service. Relator asserts that, absent his unqualified acceptance of a reassignment to a different unclassified job, ODYS could not move him to any other unclassified position.
{¶ 36} In asserting this position, relator first notes that R.C.
In an appeal pursuant to R.C.
{¶ 37} Following the promulgation of R.C.
{¶ 38} Relator argues that R.C.
{¶ 39} Relator is incorrect to assert that ODYS was obligated to return him to his position in the classified service simply because he requested it. R.C.
{¶ 40} Relator also contends that the doctrine of collateral estoppel applies and that, because the administrative law judge at the board determined that relator had a right to resume his position in the classified service, ODYS was thereafter obligated to return him to that position. Relator cites State ex rel. Oganv. Teater (1978),
{¶ 41} In Ogan, after the court noted that the administrative agency did not have a right to appeal from the adverse decision of the board, the court noted that an action in mandamus could be brought. Where the employee filed first in the court of appeals, the agency could assert the affirmative defense and counterclaim of an abuse of discretion. However, in the present case, there has been no adverse ruling from the board. Instead, the board determined that it did not have jurisdiction to hear relator's case and then went on, in dicta, to address the issue of relator's fall-back rights.
{¶ 42} Collateral estoppel prevents parties from relitigating in a subsequent case facts and issues which were fully litigated in a previous case. State ex rel. Stacy v. Batavia Local SchoolDist. Bd. of Edn.,
{¶ 43} It is clear that, in the event ODYS wanted to terminate relator's employment position in the unclassified service, ODYS would have been required, by law, to return relator to his former position of employment within the classified service. That did not happen in the present case. Instead, ODYS appointed relator to a different position within the unclassified service. R.C.
{¶ 44} Based on the foregoing, this magistrate finds that relator has not demonstrated that ODYS has a clear legal duty to return him to his position in the classified service. As such, relator has not demonstrated that he is entitled to a writ of mandamus and this court should deny his request for same.
/s/ Stephanie Bisca Brooks
Stephanie Bisca Brooks Magistrate