Sandra Smith v. Ted W. Sushka
| Decision Date | 15 May 1995 |
| Docket Number | 95-LW-3834,94CA37 and 94CA38 |
| Parties | Sandra Smith, Appellant v. Ted W. Sushka, Appellee Case No. 94CA37 and 94CA38. |
| Court | Ohio Court of Appeals |
Mark S Coco, Harris, McClellan, Binau & Cox, Columbus, Ohio, for Appellant.
John Alberty, Columbus, Ohio, for Appellee.
Appellant, Sandra S. Smith, appealed her removal from her position as the Administrative Assistant to the Engineer at the Washington County Engineer's Department and the subsequent abolishment of that position to the State Personnel Board of Review (hereinafter "Board"). In both cases the Board's Administrative Law Judge determined that appellant is exempted from classified service pursuant to R.C. 124.11(A) (9) by virtue of the administrative and fiduciary relationship she had with the County Engineer during the year prior to her termination. Consequently, the Administrative Law Judge recommended that the Board dismiss the appeals for lack of jurisdiction over the subject matter.[1] The Board adopted the Administrative Law Judge's report and ordered the appeals dismissed.
Appellant then appealed these matters to the Washington County Court of Common Pleas pursuant to R.C. 119.12. The cases were consolidated, and the Court of Common Pleas affirmed the Board's orders.
Appellant assigns the following error:
The Finding That Appellant Sandra Smith Was An Unclassified Employee And Therefore Is Not Subject To The Protections Of The Civil Service Laws Is Not Supported By Reliable, Probative And Substantial Evidence."
Appellant was hired as an Administrative Assistant by the Washington County Engineer on November 2, 1981. Her position was retitled "Administrative Assistant to the Engineer" in 1984. During the years of 1985 to 1992, appellant served under County Engineer Paul F. Junk. Appellant's duties included bookkeeping, managing the Washington County Engineer's office, advising the Washington County Engineer concerning budget allocations and projections, and supervising the Account clerk, among other functions.
In November 1992, appellee, Ted W. Sushka, was elected Washington County Engineer, defeating Mr. Junk, and was sworn in on January 4, 1993. Appellee planned to reorganize the department, and part of this reorganization involved terminating appellant, which he did effective March 2, 1993, and later abolishing the Administrative Assistant position.
Upon an appeal from an administrative agency, the trial court looks to see if the evidence supports the agency's finding. R.C. 119.12 provides in pertinent part as follows:
"The court may affirm the order of the agency complained of in the appeal if it finds, upon consideration of the entire record and such additional evidence as the court has admitted, that the order is supported by reliable, probative, and substantial evidence and is in accordance with law."
Once the agency's order reaches a court of appeals, the scope of review is more narrow. The Supreme Court of Ohio has held as follows:
(Emphasis added.)
Lorain City School Dist. Bd. of Edn. v. State Emp. Relations Bd. (1988), 40 Ohio St.3d 257, 260-61, 533 N.E.2d 264, 266. See, also, Rossford Exempted Village School Dist. Bd. of Edn. v. State Bd. of Edn. (1992), 63 Ohio St.3d 705, 707, 590 N.E.2d 1240, 1241 (citing Lorain City School Dist. Bd. of Edn.); Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621, 614 N.E.2d 748, 750-51 (citing Lorain City School Dist. Bd. of Edn. and Rossford Exempted Village School Dist. Bd. of Edn.). Accordingly, while the trial court's standard of review is whether the Board's "order is supported by reliable, probative, and substantial evidence and is in accordance with law," R.C. 119.12, this court's standard of review is whether the trial court has abused its discretion.[2] In so reviewing the judgment of the trial court, this court "must not substitute [its] judgment for those of an administrative agency or a trial court absent the approved criteria for doing so." Lorain City School Dist. Bd. of Edn. v. State Emp. Relations Bd., 40 Ohio St.3d at 261, 533 N.E.2d at 266.
Appellant contends that she is a classified employee in the civil service. R.C. 124.11 sets forth the distinction between classified and unclassified service: "(A) The unclassified 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 elective or principal executive officers authorized to act for and in the place of their principals, or holding a fiduciary relation to such principals, or holding a fiduciary relation to such principals and those persons employed by and directly responsible to elected county officials and holding a fiduciary or administrative relationship to such elected county officials, and the employees of such county officials whose fitness would be impracticable to determine by competitive examination[.] ***"
The significance of this distinction is that those employees in the classified service can only be removed for good cause pursuant to the procedures of R.C. 124.34. Employees in the unclassified service are not entitled to this protection. See Yarosh v. Becane (1980), 63 Ohio St.2d 5, 9, 406 N.E.2d 1355, 1359.
Consequently, those employees who have a fiduciary or administrative relationship to elected county officials are in the unclassified service. The issue in this case, therefore, is whether appellant had a fiduciary or administrative relationship to the Washington County Engineer. "This question is one of fact, not of title, and can only be answered by examination of the duties assigned to and performed by the [employee]." In re Termination of Employment (1974), 40 Ohio St.2d 107, 115, 321 N.E.2d 603, 609.
The Supreme Court of Ohio has explained the meaning of "fiduciary or administrative relationship" in a number of cases. In In re Termination of Employment, the Supreme Court stated that the words fiduciary and administrative imply "something more than the ordinary relationship of employer and employee." Id. at 114, 321 N.E.2d at 608.
"A 'fiduciary relationship' is one in which special confidence and trust is reposed in the integrity and fidelity of another and there is a resulting position of superiority or influence, acquired by virtue of this special trust." Id. (citing 5 Bogert on Trusts and Trustees, 119-32). Fiduciary relationships may be found where the employee is required to perform duties that could not be delegated to the average employee with knowledge of proper procedure, because such a position requires special trust and confidence. Yarosh v. Becane, 63 Ohio St.2d at 11, 406 N.E.2d at 1360. Also indicative of a fiduciary relationship is the degree of discretion an employee enjoys in carrying out his or her duties. State ex rel. Charlton v. Corrigan (1988), 36 Ohio St.3d 68, 71, 521 N.E.2d 804, 806 (citing Rarick and Yarosh).
"It may be concluded that in determining whether a fiduciary relationship exists between a public official and his appointed employees, pursuant to R.C. 124.11(A) (9), which would exempt such employees from civil service status, emphasis should be placed upon whether the assigned job duties require, as essential qualifications over and above technical competency requirements, a high degree of trust, confidence, reliance, integrity and fidelity."
Id. Trustees, lawyers, accountants, and guardians are all examples of fiduciaries. In re Termination of Employment at 115, 321 N.E.2d at 609.
The Supreme Court discussed administrative relationships in Yarosh v. Becane, which, like In re Termination, involved a determination of whether a deputy sheriff was in the classified service:
Yarosh v. Becane, 63 Ohio St.2d at 12, 406 N.E.2d at 1360. Also indicative of an administrative relationship is the responsibility for "formulating official policy" or "carrying out that policy in the supervision of the daily activities of subordinates." Id.
The Board examines a one year time period for jurisdictional hearings. After the change of administration in the Washington County Engineer's Department, appellant worked only two and a half weeks in January and February of 1993. During this time, appellant's duties were limited in comparison to those she performed under prior administrations.
Appellant contends that 90% of her time as an Administrative Assistant was spent on bookkeeping duties. She also performed various clerical and receptionist duties. Based on these responsibilities, appellant would have us find that she does not have a fiduciary or administrative relationship to the county engineer and is therefore in the classified service.
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