Fair v. School Emp. Retirement System of Ohio

• Decision Date: 01 May 1975
• Citation: 44 Ohio App.2d 115,73 O.O.2d 101,335 N.E.2d 868
• Parties: , 73 O.O.2d 101 FAIR, Appellant, v. SCHOOL EMPLOYEES RETIREMENT SYSTEM OF OHIO, Appellee. *
• Court: Ohio Court of Appeals

Page 115

44 Ohio App.2d 115

335 N.E.2d 868, 73 O.O.2d 101

FAIR, Appellant, v. SCHOOL EMPLOYEES RETIREMENT SYSTEM OF OHIO, Appellee. ^*

Court of Appeals of Ohio, Tenth District, Franklin County.

May 1, 1975.

Syllabus by the Court

Neither R.C. 119.12 nor R.C. 2506.01 confer a remedy of appeal from a decision of the School Employees Retirement Board denying an application for disability retirement.

Lucas, Prendergast, Albright, Gibson, Brown & Newman, Peter J. Gee and Robert J. Walter, Columbus, for appellant.

William J. Brown, Atty. Gen., Thomas R. Anderson, Asst. Atty. Gen., and David J. Sherriff, Columbus, for appellee.

WHITESIDE, Judge.

This is an appeal from a judgment of the Franklin County Court of Common Pleas dismissing plaintiff David Fair's appeal from an order of the School Employees Retirement Board which denied him disability retirement benefits. Plaintiff raises two assignments of error in support of his appeal, as follows:

'1. The Court erred in dismissing the appeal from an order of the School Employees Retirement Board denying disability retirement to a member for lack of jurisdiction of the subject matter.

'2. The Court erred in refusing to consolidate the appeal from the order of the School Employees Retirement Board denying appellant disability retirement with a second action challenging the same order seeking a writ of mandamus, or mandatory injunction.'

With respect to the first assignment of error, plaintiff contends that he has a right to appeal from the order of the School Employees Retirement Board, either under R.C. 119.12 or R.C. 2506.01. The School Employees Retirement System is established by R.C. 3309.03, and the School Employee's Retirement Board is created by R.C. 3309.04. Disability retirement is provided for by R.C. 3309.40 and 3309.41. R.C. 3309.39 provides that, with respect to disability retirement, 'the action of the board shall be final.' Similarly, R.C. 3309.40 provides, in part: 'The school employees retirement board is the final authority in determining the eligibility of a member for such form of retirement.' There is no provision in these sections, or elsewhere in R.C. Chapter 3309 for an appeal from a determination of the School Employees Retirement Board.

Plaintiff points out that R.C. 119.12 confers a right of appeal upon 'any party adversely affected by an order of an agency issued pursuant to any other adjudication.' He further quotes R.C. 119.01 as defining the word 'agency' to include 'any official, board, or commission having authority to promulgate rules or make adjudications.' However, a more complete quotation of the definition reveals limitations upon the application thereof. R.C. 119.01(A) reads, in pertinent part, as follows:

"Agency' means, except as limited by this division, any official, board, or commission having authority to promulgate rules or make adjudications in the bureau of unemployment compensation, the civil service commission, the department of industrial relations, the department of liquor control, the department of taxation, the industrial commission, the functions of any administrative or executive officer, department, division, bureau, board, or commission of the government of the state specifically made subject to sections 119.01 to 119.13, inclusive, of the Revised Code, and the licensing functions of any administrative or executive officer, department, division, bureau, board, or commission of the government of the state having the authority or responsibility of issuing, suspending, revoking, or cancelling licenses. * * *' (Emphasis added.)

Thus, the general appeal provision relied upon by plaintiff applies only to the specified agencies. As set forth in the first paragraph of the syllabus of In re Martins Ferry Met. Housing Auth. (1965), 2 Ohio App.2d 237, 207 N.E.2d 672:

'There are three ways in which a state board may be subjected to the Administrative Procedure Act under Section 119.01(A), Revised Code namely: (1) certain boards are specifically named, (2) the legislation concerning a board specifically subjects such board to this Act, and (3) a board which has authority to issue, suspend, remove or cancel licenses.'

Since the School Employees Retirement Board is not one of the specified agencies enumerated in R.C. 119.01(A), and, since there is no statutory provision making R.C. Chapter 119 applicable to orders or adjudications by that board, there is no remedy by way of administrative appeal, pursuant to R.C. 119.12, from an order or adjudication of the School Employees Retirement Board.

R.C. 2506.01 provides, in part:

'Every final order, adjudication, or decision of any officer, tribunal, authority, board, bureau, commission, department or other division of any political subdivision of the state may be reviewed by the common pleas court of the county in which the principal office of the political subdivision is located * * *.'

Plaintiff contends that, since there is no statutory definition of 'political subdivision,' as used in R.C. 2506.01, the School Employees Retirement Board should be found to be a political subdivision under that section. Although, at first glance, it would appear that the term 'political subdivision' is one of such general meaning and understanding that no definition is required, there is little authority as to what the term actually means and encompasses. The General Assembly has variously defined the term 'political subdivision' for different purposes, including definitions set forth in R.C. 133.01(A), 323.01(A), 3501.01(N), 5705.01(A), 5713.081, 5915.01(F), and 6101.01(C). In Wolf v. Columbus (1954), 98 Ohio App. 333, at page 335, 129 N.E.2d 309, at page 310, this court referred to several of these definitions and then stated:

'While these definitions have application only to laws in the chapters wherein they are found, they are helpful in determining what the legislative body understood the terms to ordinarily mean. * * *'

Such definitions were particularly helpful in Wolf, which held a city to be a political subdivision of the state, because the statutory definitions have invariably included cities in the definition of 'political subdivision.' Conversely, the General Assembly has never included the School Employees Retirement Board, or any other retirement...