Richard F. Slyk v. Public Employees Retirement System of Ohio

• Decision Date: 15 July 1988
• Docket Number: 88-LW-2381
• Parties: Richard F. SLYK, Plaintiff-Appellee, v. PUBLIC EMPLOYEES RETIREMENT SYSTEM OF OHIO, et al., Defendant-Appellants.
• Court: Ohio Court of Appeals

Richard F. SLYK, Plaintiff-Appellee, v. PUBLIC EMPLOYEES RETIREMENT SYSTEM OF OHIO, et al Defendant-Appellants.

No. 88-LW-2381 (11th)

Court of Appeals of Ohio, Eleventh District, Trumbull County.

July 15, 1988

Civil Appeal from the Court of Common Pleas Case No. 85 CV 271.

Charles Richards, Warren, for plaintiff-appellee.

Anthony J. Celebrezze, Jr., Attorney General, William Damsel Assistant Attorney General, Columbus, for defendant-appellant, Public Employees Retirement System of Ohio.

Christopher J. Shaker, Assistant Prosecutor, Warren, for defendant-appellant Edward Bush, Auditor.

Before JOSEPH DONOFRIO, P.J., Seventh Appellate District, and SAUL G. STILLMAN, J., Ret. Eighth Appellate District, and ROBERT B. FORD, J., Ret., Geauga County Court of Common Pleas sitting by assignment.

OPINION

SAUL G STILLMAN, Judge.

On or about December 1, 1963, the appellee, Richard F. Slyk (Slyk), was employed by the City of Warren Fire Department (Fire Department) and remained employed with the Fire Department until his retirement on June 15, 1984. Slyk was a member of the Police and Firemen's Disability and Pension Funds (PFDPF) during his employment with the Fire Department.

On or about February 23, 1968, Slyk began an employment with Trumbull County, Ohio, has been continuously employed by Trumbull County since that time, and is currently employed by the Trumbull County Treasurer.

PERS directed a letter, dated August 14, 1974, to then Trumbull County Auditor Patrick J. Sullivan, requiring Slyk to establish membership in PERS due to Slyk's employment with the Treasurer's office.

In accordance with PERS instructions, Slyk's personal employment record was submitted to PERS. On November 21, 1974, PERS directed an "Employer Billing Notice" to the Auditor requiring Trumbull County to pay $6,266.33 to establish Slyk's membership in PERS from February 18, 1968 to August 24, 1974. In December 1974, Trumbull County paid the $6,266.33 required to establish Slyk's membership in PERS retroactively to February 18, 1968. From approximately August 14, 1974 until December 29, 1984, PERS received contributions for the account of Slyk pursuant to his employment with Trumbull County.

On or about January 9, 1985, PERS issued a warrant to Slyk in the amount of $9,372.46 as a return of Slyk's employee contribution to PERS. On March 7, 1985, PERS issued a second warrant to Slyk in the amount of $178.71 as a further return of his employee contributions to PERS. These amounts did not include interest. Slyk negotiated the $9,372.46 warrant on March 7, 1985. On March 11, 1985, Slyk negotiated the $178.71 warrant.

On or about March 7, 1985, PERS issued a warrant in the amount of $15,306.97 to Trumbull County which represents employer contributions for September 1, 1974 through December 29, 1984. On or about May 9, 1985, PERS issued a second warrant to Trumbull County for those funds which had been required to establish Slyk's PERS membership retroactively. PERS relies on R.C. 145.02 to claim that Slyk's membership in PERS was unauthorized or excluded and that Slyk's employee contribution had to be returned to him. Subsequent to notification from PERS, Trumbull County made no further contributions to PERS on the account of Slyk.

On March 5, 1985, Slyk filed suit against PERS (appellant). On May 29, 1987, Trumbull County Common Pleas Court Judge Robert A. Nader (trial court) found for appellee and appellant timely filed its notice of appeal, assigning two errors:

"1.The trial court erred in determining that appellee is entitled to maintain membership in PERS when R.C. 145.02 excludes appellee from membership in PERS since he was a contributing member of PFDPF.

"2.The trial court erred in ordering that appellee is entitled to continue his erroneously established membership in PERS notwithstanding his receipt of PFDPF benefits and the prohibition of such membership in R.C. 145.02 and R.C. 124.85."

Both assignments of error are discussed together herein. R.C. 145.02 reads in pertinent part as follows:

"(A) Notwithstanding section 145.03 of the Revised Code, any public employee who is contributing to or is receiving disability benefits from a municipal retirement system established prior to June 30, 1938, or who has been granted a disability retirement allowance by the state teachers retirement system, or school employees retirement system, or who is contributing to the police and firemen's disability and pension fund or the state highway patrol retirement system shall be excluded from...