Stаte ex rel. Kathy Tarrier, Relator, v. Public Employees Retirement Board, Respondent.
No. 18AP-12
IN THE COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT
February 27, 2020
2020-Ohio-681
BEATTY BLUNT, J.
(REGULAR CALENDAR)
D E C I S I O N
Rendered on February 27, 2020
On brief: Kathy Tarrier, pro se.
On brief: Dave Yost, Attorney General, Mary Therese J. Bridge and Isaac Molnar, for Ohio Public Employees Retirement Board.
IN MANDAMUS
ON OBJECTION TO THE MAGISTRATE‘S DECISION
BEATTY BLUNT, J.
{¶ 1} Relator, Kathy Tarrier, has filed this original action requesting this court issue a writ of mandamus ordering respondent, Public Employees Retirement Board (“PERB“), to retroactively modify relator‘s retirement plan with the Ohio Public Employees Retirement System (“OPERS” or “PERS“) from the Combined Plan to the Traditional Pension Plan, effective to October 8, 1987, her original date of hire by the Franklin County Public Defender.
{¶ 2} This matter was referred to a magistrate pursuant to
{¶ 3} Respondent filed objections to the magistrate‘s decision, and relator filed a memorаndum in opposition to respondent‘s objections. Accordingly, this matter is now before this court for a full, independent review. Pursuant to such review, we may “adopt or reject [the] magistrate‘s decision in whole or in part, with or without modification[,] * * * hear [the] matter, take additional evidence, or return [the] matter to a magistrate.”
{¶ 4} Respondent presents one objection to the magistrate‘s decision in its objection to the magistrate‘s conclusions of law: the magistrate erred in determining relator‘s 2003 election to participate in the Combined Plan was legally impermissible.
{¶ 5} We begin with a brief summary of the legislative history and case law leading up to the present matter to provide context to our analysis of relator‘s claim. In 1976, the General Assembly enacted
{¶ 6} In 1977, pursuant to former
{¶ 7} It was not long before various state officials began to question the legality of the manner in which certain county public defender offices operated. Id. at ¶ 7. In 1980, the chief of the Administrative Services Section of the Ohio Attorney General‘s office issued an informal opinion “concluding that employees of county public-defender offices were county employees and should be enrolled in PERS.” Id., citing Mallory at 236. Subsequently, and based on that informal opiniоn, the state auditor advised officials in Summit County — the only county other than Franklin County treating employees of its public defender office as private employees — that its public defender office was operating illegally and was not entitled to reimbursement by the state for its operations. Id., citing Mallory at 236-37.
{¶ 8} In response to the foregoing concerns, in 1984, the General Assembly enacted
I. The Mallory Decision
{¶ 9} In 1998, the Supreme Court of Ohio issued the first of several decisions concerning the employment status of individuals employed by the FCPDO (in existence from 1976-1984) and the FCPDO Non-profit (in existence from 1985 onward.) In Mallory, the Supreme Court held that any person hired by the FCPDO on or before December 31, 1984 is a public employee entitled to PERS benefits. Mallory at 241. In Mallory, the Supreme Court granted a writ of mandamus ordering PERB to credit Diane Mallory, a former employee of the FCPDO, with her years of service as a law clerk from 1978 to 1980
{¶ 10} On appeal first to this court and again before the Supreme Court, PERB argued that Mallory was not a public employee because the FCPDO was a рrivate entity with which Kura had contracted for services. The Supreme Court rejected PERB‘s argument for two reasons. First, there was no evidence before the court of any contract — either written or oral — between Kura and the FCPDO. Id. at ¶ 11, citing Mallory at 242. Second, even if such a contract existed, “it would have been invalid under
{¶ 11} The Supreme Court further held that
{¶ 12} After the Mallory decision was issued, the “Franklin County Public Defender” was declared a county agency, effective as of January 1, 1999. Id. at ¶ 13. All current employees as of January 1, 1999, who were hired after December 31, 1984, had their hire date changed to January 1, 1999, including that of relator. Further, from that date forward, all employees, including relator, were enrolled in PERS. Id. Thus, after the issuance of the
II. The Van Dyke Decision
{¶ 13} The Supreme Court next addressed the status of FCPDO and FCPDO Non-profit employees as public employees in 2003 when it decided State ex rel. Van Dyke v. Public Emp. Retirement Bd., 99 Ohio St.3d 430, 2003-Ohio-4123. Beginning in 1982, Omia Nadine Van Dyke worked for the FCPDO, first as a legal intern, and later as a staff attorney. In 1985, after the enactment of
{¶ 14} Following the Supreme Court‘s decision in Mallory, PERB credited Van Dyke with her years of service with the FCPDO from February 1982 to November 1985 but refused to credit her for her employment with the FCPDO Non-profit from 1986 to 1991. Agreeing with PERB, the Supreme Court rejected Van Dyke‘s claim she was entitled to PERS credit for employment with the FCPDO Non-profit because she was a “carryover” employee under
{¶ 15} In May 2016, the Supreme Court issued the next key decision concerning the employment status of individuals employed by the FCPDO and/or the FCPDO Non-profit. In Altman-Bates, the Supreme Court held that any person hired by the FCPDO between January 1, 1985, when the FCPDO Non-profit was formed, and October 1992, when Kura resigned his position as the statutory office holder of Franklin County Public Defender, is a public employee entitled to PERS service credit for his or her service prior to January 1, 1999. Altman-Bates at ¶ 31.
{¶ 16} The events culminating with the issuance of the Altman-Bates decision began in February 2001, when 51 present and former employees of the FCPDO filed for PERS membership and service credit for their service prior to January 1, 1999. Id. at ¶ 14. PERS staff rejected the claims, concluding the Supreme Court‘s previous holding in Van Dyke precluded the claimants’ claims based on the assumption that the Supreme Court had ruled in Van Dyke persons hired after 1984 were not eligible for PERS coverage prior to January 1, 1999. Id. Upon appeal to PERB, the hearing exаminer agreed, finding the doctrine of collateral estoppel precluded relitigating the status of the FCPDO Non-profit during the post-1984 time period by virtue of Van Dyke. PERB accepted the hearing examiner‘s recommendation and denied the claimants’ request for PERS service credit for the period from January 1, 1985 through December 31, 1998. Id.
{¶ 17} Upon the claimants’ request for a writ of mandamus in this court, we granted a limited writ, directing PERB to issue a new order adjudicating the claims on their merits. State ex rel. Davis v. Pub. Emps. Retirement Bd., 10th Dist. No. 04AP-1293, 2007-Ohio-6594 (“Davis I“). The Supreme Court affirmed, stating that “PERB abused its discretion by ruling that our previous decision in Van Dyke * * * collaterally estopped [the claimants] from raising their claims for service credit” and specifically holding that collateral estoppel did not apply. State ex rel. Davis v. Pub. Emps. Retirement Bd., 120 Ohio St.3d 386, 2008-Ohio-6254, ¶ 44 (“Davis II“). In so finding, the Supreme Court “noted that the only issue in Van Dyke had been whether the sole employee bringing that case, who had worked as a staff attorney during two separate time periods, was eligible for PERS service credit during the second time period as a carryover employee” pursuant to the carryover provision of
{¶ 18} Upon remand for adjudication on the merits, proceedings resumed before PERB and the claimants presented additional evidence. Altman-Bates at ¶ 16. Following the hearing, the hearing examiner issued a report and recommendation, concluding that during the pertinent time period, the claimants were employed by a non-profit corporation, not a public employer. Id. Accordingly, the hearing examiner recommended PERB deny the claims for PERS coverage. Id.
{¶ 19} The matter came before PERB on March 17, 2010, and PERB voted to accept the hearing examiner‘s report and recommendation. Id. at ¶ 17. PERB found that, for the relevant time period, “the Franklin County Public Defender was a non-profit corporation that employed Claimants to provide public defender services and wаs not a public employer for OPERS purposes, and therefore Claimants are not public employees for the time period December 31, 1984, to January 1, 1999.” Id. Thus, the claimants’ requests for PERS service credit were denied by a final administrative decision of PERB.
{¶ 20} Three of the original 51 claimants — Altman-Bates, Neyerlin, and Steele — filed a mandamus action in this court on March 1, 2011.2 Id. at ¶ 18. Subsequently, the court‘s magistrate granted Melani Anderson leave to intervene as a relator. Id. On April 30, 2013, the magistrate issued a decision concluding PERB did not abuse its discretion when it denied the claims for PERS coverage and recommending this court deny relators’ request for a writ of mandamus. Id. We overruled objections to the magistrate‘s decision, adopted the magistrate‘s findings of fact and conclusions of law, and denied the writ. The four relators timely appealed to the Supreme Court.
{¶ 21} On appeal to the Supreme Court, the court observed that unlike in Mallory, where the record was bereft of evidence of any contracts between Kura and the office of the
{¶ 22} In reaching its answer to the foregoing query, the court first noted Kura was appointed to the statutory office of “Franklin County Public Defender” in 1977. Id. at ¶ 26. The court then found the recоrd was devoid of any evidence Kura resigned that office in 1985 when the FCPDO Non-profit was formed or that the FCPDC dissolved the office of the Franklin County Public Defender at that time. Id. at ¶ 28. To the contrary, the court declared “the evidence shows that Kura held two positions simultaneously.” Id. at ¶ 29.
{¶ 23} The court determined this fact was dispositive of the issue before it, holding that:
[b]ecause Kura was a county official at the same time he was director of the corporation, the employees of that corporation who were hired while he held the statutory office were employed by a public official, and hence, they were public employees.
(Emphasis added.) Id. at ¶ 31. Kura did not resign from his position as the statutory officeholder of the Franklin County Public Defender until October 1992. Id. The court found that because the claimants3 were hired during Kura‘s tenure, i.e., between 1977 and October 1992, they were “entitled to PERS service credit for their service prior to January 1,
{¶ 24} In the aftermath of the Supreme Court‘s decision in Altman-Bates, all Franklin County Public Defender employees who were similarly situated to the claimants in that case, i.e., hired during Kura‘s tenure, received service credit in PERS for past non-contributing service for the period prior to January 1, 1999. This category of employees included relator, who in 2016 received 11.25 years of service credit for her service with the FCPDO for the period of October 8, 1987, her original date of hire, to December 31, 1998. Further, pursuant to
IV. The Current Dispute
{¶ 25} We begin by briefly summarizing the key background facts, which are more fully set forth in the magistrate‘s decision. As a preliminary matter we observe OPERS has not objected to the magistrate‘s findings of fact. Upon review of same, and with one exception as explained next, we adopt the magistrate‘s findings of fact as our own.
{¶ 26} As noted previously, soon after the Mallory decision was issued, relator became a member of OPERS and began making employee contributions on January 1, 1999. At that time there was only one OPERS retirement plan — a traditional, defined-benefit pension plan which is now known as the “Traditional Pension Plan.” Thus, relator and all others employed by the FCPDO as оf January 1, 1999 were participants in the Traditional Pension Plan by default. Finding of fact number five states: “Relator initially elected to participate in the OPERS traditional plan as of January 1, 1999” but this is incorrect as nothing in the record indicates there was an “election.” (Emphasis added.) Rather, there being only one plan at the time (the Traditional Pension Plan), this was the plan in which relator was placed. Therefore, we modify finding of fact number five to state “Relator began to participate in the OPERS traditional plan as of January 1, 1999.”
{¶ 27} Within a few years after relator became a member of OPERS, the General Assembly enacted legislation that permitted OPERS to establish two other types of retirement plans in addition to the Traditional Pension Plan. These other types include a defined-contribution plan (known as the “Member-Directed Plan“) and a hybrid plan that
{¶ 28} Participation in either of the two new plans was limited to new OPERS members and current OPERS members who, as of December 31, 2002, had less than five years of total service credit.
{¶ 29} Because of the post-Mallory declaration that the “Franklin County Public Defender” was a county agency effective as of January 1, 1999, as of December 31, 2002 relator had three years of service and was therefore eligible to elect to participate in one of the new plans. On May 27, 2003, relator submitted an electronic form online evincing her election to participate in the Combined Plan. Additionally, she elected to transfer her Traditional Pension Plan account balance to the Combined Plan, as permitted by
{¶ 30} On May 15, 2008, relator contacted OPERS to inquire about changing her retirement plan from the Combined Plan back to the Traditional Pension Plan. Relator met with an OPERS representative on May 28, 2008 to discuss options to purchase plan change
{¶ 31} In 2017, after relator had been granted 11.25 years of service credit for her non-contributing service with the FCPDO for the period of October 8, 1987 to December 31, 1998, in the wake of the Altman-Bates decision, relator again contacted OPERS to discuss her retirement plan. More specifically, relator requested OPERS retroactively change her retirement plan from the Combined Plan to the Traditional Pension Plan with an effective date of October 8, 1987. OPERS denied relator‘s request on the basis there is no statutory authority permitting OPERS to retroactively change her retirement plan as requested and because her account had been administered in compliance with Ohio law.
{¶ 32} On April 9, 2018, relator filed this mandamus action.
{¶ 33} ” ‘[M]andamus is an appropriate remedy where no statutory right of appeal is available to correct an abuse of discretion by an administrative body.’ ” State ex rel. Lucas Cty. Bd. of Mental Retardation & Dev. Disabilities v. Pub. Emps. Retirement Bd., 123 Ohio St.3d 146, 2009-Ohio-4694, ¶ 15, quoting State ex rel. Pipoly v. State Teachers Retirement Sys., 95 Ohio St.3d 327, 2002-Ohio-2219, ¶ 14. The parties agree relator has no statutory right of appeal from the denial by OPERS of her request.
{¶ 34} The Supreme Court 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 law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28, 29 (1983). Further, to be entitled to the requested writ of mandamus, relator must establish rеspondent abused its discretion. State ex rel. Domhoff v. Ohio Pub. Emps. Retirement Sys. Bd., 140 Ohio St.3d 284, 2014-Ohio-3688, ¶ 14. An abuse of discretion connotes a decision which is unreasonable, arbitrary, or unconscionable. State ex rel. Shisler v. Ohio Pub. Emps. Retirement Sys., 122 Ohio St.3d 148, 2009-Ohio-2522, ¶ 11. Further, respondent has not abused its discretion if there is “some evidence” to support its determination. State ex rel. Schaengold v. Ohio Pub. Emps. Retirement Sys., 114 Ohio St.3d 147, 2007-Ohio-3760, ¶ 19.
{¶ 35} As previously noted, the magistrate concluded relator‘s May 27, 2003 election to change her retirement plan from the Traditional Pension Plan to the Combined
{¶ 36} In its objection, respondent argues the magistrate erred in concluding relator‘s 2003 election to participate in the Combined Plan was legally impermissible. More specifically, respondent asserts the magistrate‘s conclusion that the future service credit relator would receive in 2016 for her non-contributing service with the FCPDO as a result of the Altman-Bates decision precluded relator from making her 2003 election is in direct conflict with the plain language of
{¶ 37} We have previously stated, “it is well-established that the Ohio retirement systems, as statutorily created entities, have no authority beyond what is conferred to them under their governing statutes.” Hansford v. Pub. Emps. Retirement Sys., 170 Ohio App.3d 603, 2007-Ohio-1242, ¶ 9 (10th Dist.), citing Dreger v. Pub. Emps. Retirement Sys., 34 Ohio St.3d 17, 21 (1987); Erb v. Erb, 75 Ohio St.3d 18, 22 (1996); Cosby v. Cosby, 96 Ohio St.3d 228, 232, 2002-Ohio-4170. Thus, “unless its governing statutes grant the authority, OPERS is powerless to perform the act.” Hanford at ¶ 9.
{¶ 38} The primary goal of statutory construction is to give effect to the General Assembly‘s intent in enacting the statute. State v. Banks, 10th Dist. No. 11AP-69, 2011-Ohio-4252, ¶ 13, citing State v. Hairston, 101 Ohio St.3d 308, 2004-Ohio-969, ¶ 11. To
{¶ 39} Further, “[a]ll statutes relating to the same general subject matter must be read in pari materia, and in construing these statutes in pari materia, this court must give them a reasonable construction so as to give proper force and effect to each and all of the statutes.” State ex rel. Herman v. Klopfleisch, 72 Ohio St.3d 581, 585 (1995), citing United Tel. Co. of Ohio v. Limbach, 71 Ohio St.3d 369, 372 (1994); State ex rel. Cordray v. Midway Motor Sales, Inc., 122 Ohio St.3d 234, 2009-Ohio-2610, ¶ 25 (noting statutory provisions related to the same subject matter should be construed harmoniously unless they are irreconcilable). “In reviewing a statute, a court cannot pick out one sentence and disassociate it from the context, but must look to the four corners of the enactment to determine the intent of the enacting body.” State v. Wilson, 77 Ohio St.3d 334, 336 (1997), citing MacDonald v. Bernard, 1 Ohio St.3d 85, 89 (1982).
{¶ 40}
(A) Except as provided in division (F) of this section, a public employees retirement system member or contributor who, as
of December 31, 2002, has less than five years of total service credit is eligible to make an election under this section. A member or contributor who is employed in more than one position subject to this chapter is eligible to make only one election. The election applies to all positions subject to this chapter. Not later than June 30, 2003, an eligible member or contributor may elect to participate in a PERS defined contribution plan. Unless a form evidencing an election is received by the system on or before that date, a member or contributor to whom this section applies is deemed to have elected to continue participating in the PERS defined benefit plan.
(B) An election under this section shall be made in writing on a form provided by the system and filed with the system.
(C) On the request of a member or contributor who made an election under this section, the system shall credit to the plan elected the accumulated contributions standing to the credit of the member or contributor in the employees’ savings fund and cancel all service credit and eligibility for any payment, benefit, or right under the PERS defined benefit plan.
(D) For each member or contributor who elected under this section to participate in a PERS defined contribution plan and made a request under division (C) of this section, any additional deposits that were made by the member or contributor prior to April 6, 2007, under the version of division (C) of section 145.23 of the Revised Code as it existed immediately prior to that date shall be credited to the defined contribution plan.
(E) An election under this section is effective as of January 1, 2003, and, except as provided in
section 145.814 5 of the Revised Code or rules governing the PERS defined benefit plan, is irrevocable on receipt by the system.
(F) An election may not be made under this section by a member or contributor who is either of the following:
(1) A PERS retirant who is a member under division (C) of
section 145.38 of the Revised Code;(2) A PERS law enforcement officer or a PERS public safety officer.
(Emphasis added.)
{¶ 41} Conspicuously absent from the foregoing statute is any exception to
{¶ 42} This conclusion is further buttressed by the 2012 passage of S.B. No. 343, which amended
{¶ 43} Finally, we observe that at the time
{¶ 44} Instead, we find
{¶ 45} Furthermore, relator‘s assertion notwithstanding, the Supreme Court‘s decision in Altman-Bates fails to lend support to her contention she should be permitted to unwind her 2003 election made pursuant to
Because Kura6 was a county official at the same time he was director of the corporation, the employees of that corporation who were hired while he held the statutory office were employed by a public official, and hence, they were public employees. * * * Accordingly, [the claimants] are entitled to PERS service credit for their service prior to January 1, 1999.
(Emphasis added.) Altman-Bates at ¶ 31.
{¶ 46} Nowhere in the Altman-Bates decision is a directive to place all FCPDO employees similarly situated to the claimants in that case in the position they would have been in had they been treated as public employees all along. Instead, the court‘s holding is limited to the directive that the claimants — and by extension, the similarly situated emрloyees who had been hired during Kura‘s tenure — were entitled to service credit for the years they worked at the FCPDO prior to January 1, 1999. As discussed previously herein, relator was an employee similarly situated to the claimants in Altman-Bates, and in 2016 she properly received 11.25 years of service credit for her service with the FCPDO for the period of October 8, 1987, her original date of hire, to December 31, 1998. Simply stated, relator has received all she was entitled to receive pursuant to the holding in Altman-Bates.
{¶ 47} As an alternative argument, relator asserts if she cannot be placed back in the Traditional Pension Plan, at the very least her defined contribution account should be credited for the amount paid by Franklin County pursuant to
(A) This rule amplifies
section 145.483 of the Revised Code.(B) For purposes of this rule:
* * *
(3) “Noncontributing service” means a period of employment or service for which employee contributions pursuant to
section 145.47 of the Revised Code were due, but not deducted by an employer, because the service was neither exempt nor excluded.* * *
(F) Except as provided in paragraph (F)(4) of this rule:
(1) Employee contributions paid by the employer pursuant to
section 145.483 of the Revised Code and this rule shall be held in the employers’ accumulation fund as defined in division (B) ofsection 145.23 of the Revised Code.* * *
(G) If a member has contributions in more than one retirement plan, the contributions paid by the employer pursuant to
section 145.483 of the Revised Code shall be credited to the plan in which the noncontributing service would have been earned, if it were remitted at the time the service occurred. If the member no longer has contributions in the retirement plan in which the noncontributing service would have been earned, the contributions paid by the employer pursuant tosection 145.483 of the Revised Code shall be credited to the plan in which the member is now contributing.
(Emphasis added.)
(B) The employers’ accumulation fund is the fund in which shall be accumulated the reserves for the payment of all pensions and disability benefits payable as provided in this chapter. The amounts paid by any employer under
section 145.48 of the Revised Code shall be credited to the employers’ accumulation fund. Amounts paid by an employer undersection 145.483 of the Revised Code
shall be credited to the employers’ accumulation fund * * *7.
(Emphasis added.)
{¶ 48} Thus, pursuant to
{¶ 49} In summary, relator has been granted the service credit to which she is entitled pursuant to Altman-Bates, and the amount paid by Franklin County for her non-contributing service has been properly credited to the defined-benefit portion of her Combined Plan under the law. There is no statutory authority that would permit respondent to unwind relator‘s May 27, 2003 election to switch from the Traditional Pension Plan to the Combined Plan, and respondent has not abused its discretion in refusing to do so. Relator has not shown she has a clear legal right to the relief she requests, nor that respondent is under a clear legal duty to perform the act requested; therefore, relator has not shown she is entitled to a writ of mandamus for the relief she seeks.
{¶ 50} We acknowledge our decision today results in an outcome that may seem unfair. Indeed, relator pointedly argues in both her opening brief and her response to respondent‘s objection that respondent‘s position in this matter is “patently unfair,” “leaves Relator in the worst of all possible worlds,” and “results in a windfall to OPERS,” i.e., because all of the amounts paid by Franklin County for her non-contributing service was credited to the defined-benefit portion of her Combined Plan account. (Relator‘s Brief at
{¶ 51} Hence, although the result of our decision may seem harsh, this court is constrained by the law as it is written, not as we would like it to be applied to individuals on an ad hoc basis. For it is well-settled that ” ’ “subjеctive principles of equity and fundamental fairness” ’ ” do not determine whether a writ of mandamus shall issue; rather, the question is whether there is a clear legal duty to perform the requested act. Pipoly at ¶ 22, citing VanCleave v. School Emps. Retirement Sys., 120 Ohio St.3d 261, 2008-Ohio-5377, ¶ 26, quoting State ex rel. Schwaben v. School Emp. Retirement Sys., 76 Ohio St.3d 280, 285 (1996). In this case, we find there is not.
{¶ 52} In conclusion, after an examination of the magistrate‘s decision and an independent review of the record pursuant to
Objection sustained; writ of mandamus denied.
SADLER, P.J., and BROWN, J., concur.
The State ex rel. Kathy Tarrier, Relator, v. [Ohio] Public Employees Retirement Board, Respondent.
No. 18AP-12
IN THE COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT
April 22, 2019
(REGULAR CALENDAR)
Rendered on April 22, 2019
Kathy Tarrier, pro se.
Dave Yost, Attorney General, John J. Danish, and Mary Therese J. Bridge, for respondent.
IN MANDAMUS
{¶ 53} Relator, Kathy Tarrier, brings this original action requesting that this court issue a writ of mandamus ordering respondent, the Ohio Public Employees Retirement Board, to modify relator‘s terms of participation in the Ohio Public Employees Retirement System (“OPERS“), granting relator credit for participation in OPERS’ traditional pension plan, rather than her current credit in the OPERS’ combined plan. The board determined that relator was not eligible to rescind her previous election of the combined plan because
Findings of Fact:
{¶ 54} 1. Relator is a member of OPERS.
{¶ 55} Relator began working for the Franklin County Public Defender‘s Office (“FCPD“) in 1987.
{¶ 56} For the first 12 years of her employment with FCPD, her employer did not consider relator and other, similarly situated, employees as eligible for OPERS membership and did not contribute to OPERS on relator‘s behalf.
{¶ 57} The classification of FCPD employees was the object of prolonged litigation culminating in the Supreme Court of Ohio‘s decision in State ex rel. Mallory v. Pub. Emps. Retirement Bd., 82 Ohio St.3d 235 (1998). As a result of that decision, relator and other FCPD employees became OPERS members and began contributing to the system, including employee and employer contributions, as of January 1, 1999.
{¶ 58} Relator initially elected to participate in the OPERS traditional plan as of January 1, 1999.
{¶ 59} The traditional plan is a “defined benefit” pension plan, providing a fixed monthly retirement benefit based on a formula incorporating years of service and final average salary.
{¶ 60} OPERS initiated two new retirement plans in 2003, offered as alternatives to the traditional plan. One of these, the “member-directed” plan, is a straightforward “defined-contribution” plan. The other is the OPERS combined plan at issue in this case.
{¶ 61} The OPERS combined plan is a hybrid retirement plan offering both a defined-benefit and a defined-contribution component. Under the defined-benefit component, a portion of member and employer contributions continue to be managed by OPERS and yield a retirement benefit based on final average salary and years of service. Because only part of contributions is allocated to this aspect of the plan, the defined benefit is lower than in the traditional plan: 1 percent of final average salary per year of service, as opposed to 2.2 percent in the traditional plan. The balance of the member and employer contributions go to a self-directed investment account, broadly comparable to
{¶ 62} Only members within fewer than five years’ service credit in the traditional plan as of December 31, 2002, were eligible to elect to convert their service credit to the combined plan.
{¶ 63} Relator contacted OPERS in 2008 to inquire about changing her plan from the combined plan back to the traditional plan. This would have required a purchase of service credit in the traditional plan with a concomitant out-of-pocket expense to relator. Relator did not choose to undertake the plan conversion at that time.
{¶ 64} Litigation regarding the status of the FCPD employees continued after the Supreme Court‘s 1998 decision in Mallory, with FCPD employees seeking credit for non-contributing service prior to January 1, 1999. The Supreme Court eventually rendered a decision in State ex rel. Altman-Bates v. Public Emps. Retirement Bd., 148 Ohio St.3d 21, 2016-Ohio-3100, granting such credit for past non-contributing service.
{¶ 65} After the Altman-Bates decision, FCPD remitted the retroactive contributions required to fund the affected employees’ retirement benefits for their noncontributing years of service.
{¶ 66} Pursuant to Altman-Bates, relator received 11.25 years of service credit for her service with the FCPD for the period from her initial hire of October 8, 1987 to December 31, 1998, the last day of service before she became a member pursuant to Mallory.
{¶ 67} Relator is currently credited, for her Altman-Bates credited service between 1987 and 1999, with a contribution fulfilling the defined-benefit component of her combined plan for service between 1987 and 1998. She will receive 1 percent of her final average salary for each year of service in this period upon retirement.
{¶ 68} For the Altman-Bates period between 1987 and 1998, FCPD made retroactive contributions for both the employer and employee shares of OPERS contributions at the appropriate contribution rates for those years of service. These contributions would have fulfilled the rate required to support a retirement benefit of 2.2 percent of final average salary for each of these years under the traditional plan.
{¶ 69} Relator received no credit to her self-managed investment account in the combined plan for her service between 1987 and 1998 despite rеtroactive contributions from FCPD for those years that would have supported a full contribution for either the combined plan or the traditional plan.
{¶ 70} Relator again contacted OPERS in 2017 to request that OPERS retroactively place her back in the traditional plan for the entirety of her service. OPERS refused on the basis that there is no statutory authority for such retroactive change of plan status, and that relator could, if she desired, use her combined plan balance and a very substantial out-of-pocket contribution to purchase service in the traditional plan.
{¶ 71} Respondent agrees that relator has exhausted her administrative remedies and has no appeal from the board‘s final determination.
Discussion and Conclusions of Law:
{¶ 72} The board is vested with authority over service credit determinations.
{¶ 73} On this basis, and due to the fact that the board does not contest in this action that relator has exhausted her administrative remedies and has no right to appeal or other “plain and adequate remedy in the ordinary course of the law,”
{¶ 74} To obtain a writ of mandamus, relator must establish that the board abused its discretion by denying her request to convert the totality of her service to the traditional plan. See, generally, Davis at ¶ 25. “A clear legal right exists * * * where the [board] abuses its discretion by entering an order which is not supported by ‘some evidence.’ ” Kinsey v. Bd. of Trustees of Police & Firemen‘s Disability & Pension Fund of Ohio, 49 Ohio St.3d 224, 225 (1990). While the term “abuse of discretion” generally connotes an unreasonable, arbitrary, or unconscionable attitude on the part of a tribunal or administrative body, it is fundamental that no judicial or quasi-judicial body has within its power the discretion to commit a prejudicial error of law. State v. Akbari, 10th Dist. No. 13AP-319, 2013-Ohio-5709, citing State v. Beechler, 2nd Dist. No. 09-CA-54, 2010-Ohio-1900, ¶ 70; Pontius v. Riverside Radiology & Interventional Assocs., 10th Dist. No. 15AP-906, 2016-Ohio-1515, ¶ 15; Hirsi v. Davis Creek Auto Sales, 10th Dist. No. 15AP-415, 2016-Ohio-7569, ¶ 41. As with any action for a writ of mandamus, relator beаrs the burden of providing evidence that she has a clear legal right to convert to the traditional plan, and that the board has a clear legal duty to extend service credit on those terms. See, generally, State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141, 161 (1967).
{¶ 75} The magistrate preliminarily notes that relator has attempted to apply to this matter various arguments sounding in equity. These are inapplicable in a mandamus action, which in Ohio is a statutorily created action premised upon the presence of clear legal rights and duties.
{¶ 76}
{¶ 77} Relator‘s argument, which the magistrate finds to be well-taken, is that as of May 27, 2003, relator did not have fewer than five years of service credit insofar as the effective impact the election would havе on her plan benefits. She had fewer than five years contributing credit because she had been improperly excluded from OPERS participation for the first 11.25 years of employment with FCPD. Relator thus had received fewer than five year‘s credit because she had not begun contributing pursuant to Mallory until January 1, 1999. Relator, however, actually had eligibility for an excess of 16 years of service at that time, and the fact that she had fewer than five years contributing credit was in no way the result of any volitional effort on her part to forego contributing for the credit to which she was entitled. It is clear that, if relator had, after Mallory but before the Altman-Bates decision, requested service credit for her pre-1999 service, OPERS would not have granted such credit. As the Supreme Court held in Altman-Bates, “[the public defender] was a county official at the same time he was director of the corporation, the employees of that corporation who were hired while he held the statutory office were employed by a public official, and hence, they were public employeеs. * * * Accordingly, [employees] are entitled to PERS service credit for their service prior to January 1, 1999.” Id. at ¶ 31.
{¶ 78} The question is whether that inchoate Altman-Bates credit was an absolute nullity at the time relator made her 2003 election, or whether to the contrary it is a sufficient right to preclude her from making that election under the five-year limitation
{¶ 79} Respondent argues that relator‘s situation is expressly addressed by
{¶ 80} Relator has a clear legal right to undo her May 2003 election, which was legally impermissible, and be placed back in the position she would occupy had she continued in the traditional plan. Having retroactively placed relator in the traditional plan, it follows that the contributions for past non-contributing service awarded under Altman-Bates and paid by the FCPD to OPERS must, under
{¶ 81} The magistrate therefore recommends this court issue a writ ordering respondent to place relator in the traditional retirement plan for the totality of her service and credit all current and past contributions, whether they be for contributing or noncontributing service, into that plan, and calculate relator‘s retirement benefits accordingly.
/S/ MAGISTRATE
MARTIN L. DAVIS
NOTICE TO THE PARTIES