State ex rel. Gillivan v. Bd. of Tax Appeals, 92-1976

• Decision Date: 07 September 1994
• Docket Number: No. 92-1976,92-1976
• Citation: 70 Ohio St.3d 196,638 N.E.2d 74
• Parties: The STATE ex rel. GILLIVAN v. OHIO BOARD OF TAX APPEALS et al.
• Court: Ohio Supreme Court

Page 196

70 Ohio St.3d 196

638 N.E.2d 74

The STATE ex rel. GILLIVAN v. OHIO BOARD OF TAX APPEALS et al.

No. 92-1976.

Supreme Court of Ohio.

Submitted May 25, 1994.

Decided Sept. 7, 1994.

Relator, John Gillivan, seeks a writ of mandamus directed against respondents, Ohio Board of Tax Appeals ("BTA") and Stephen Perry, Director of the Ohio Department of Administrative Services ("DAS"), to compel (1) Gillivan's reinstatement to the allegedly classified civil service position he formerly held at BTA, and (2) back pay.

Gillivan was formerly employed by BTA as an Administrative Assistant 4, which he claims was a classified position. In July 1991, Perry advised Gillivan by letter that his position had been "erroneously listed in the classified service" and had been changed to unclassified. In August 1991, Gillivan was discharged without notice or hearing. He timely appealed his discharge to the State Personnel Board of Review ("SPBR"). Before a decision issued in his appeal, Gillivan filed the instant action in this court.

SPBR has since issued its decision, finding that Gillivan was not performing duties in the classified service when he was discharged and dismissing his appeal for lack of jurisdiction. SPBR determined that Gillivan had served in a fiduciary relationship to principal executive officers and was thus exempt from the classified service under R.C. 124.11(A)(9). Gillivan appealed SPBR's decision to the Franklin County Court of Common Pleas pursuant to R.C. 119.12. The appeal, captioned Gillivan v. Ohio Bd. of Tax Appeals, case No. 93CVH-01-683, is apparently still pending.

SPBR adopted the report of its administrative law judge ("ALJ"), in which he found the following facts:

"1. Appellant John Gillivan was initially hired as a part-time employee by the Appellee Board of Tax Appeals in 1989 in an unclassified position. On April 9, 1990, he was hired by the Board as a full-time employee. On April 30, 1990, he was promoted to an Administrative Assistant 4 position at an hourly rate approximately twice as high as his original hourly rate.

"2. Mr. Gillivan's status was changed, at the request of the Board, in January, 1991, to the classified service.

"3. In July, 1991, Mr. Gillivan's status was again changed, at the request of the Board[,] to the unclassified status [sic, service].

"4. Mr. Gillivan was the sole person responsible to the Board and Executive Secretary for the design, implementation, analysis, and reporting of the County Auditor Liaison Program, or inter-governmental liaison program proposed by the Board of Tax Appeals.

"5. Mr. Gillivan was responsible as the contact person with the Office of Budget and Management and the Legislative Budget Office for the preparation and development of the budget of the Board of Tax Appeals, following the decision by the Board as to which direction they wished to go both policy-wise and budget-wise.

"6. Mr. Gillivan served as one of two contact persons for the on-site auditor during the audit of the Board conducted by the State Auditor.

"7. Mr. Gillivan was removed, without an R.C. 124.34 Order, by written notice received August 7, 1991, and effective August 24, 1991."

The ALJ also provided a comprehensive summary of the testimony and exhibits submitted during the three-day hearing regarding Gillivan's discharge. Most of the ALJ's findings of fact are substantiated by evidence in this record, including:

1. Randall W. Sweeney, who is presently BTA's vice-chairman and formerly its chairman, testified that Gillivan was originally hired in 1989 as a part-time unclassified employee to orchestrate BTA's move from one floor to another in the Rhodes Tower. In April 1990, BTA hired Gillivan as a full-time Administrative Assistant 2 in the unclassified service. Effective May 7, 1990, Gillivan was promoted to Administrative Assistant 4 and, in January 1991, he was placed as a provisional employee in the classified service.

2. Sue Pohler, BTA's executive director and Gillivan's superior since May 1991, testified that Gillivan's duties included visiting county auditors pursuant to the "Inter-governmental Liaison Program." This program was intended to identify and solve problems associated with processing property tax valuation cases, and Gillivan was the only BTA employee involved. Gillivan was also intimately involved with preparing BTA's proposed budget in accordance with its policy and budgetary decisions. Moreover, Pohler testified that Gillivan was the primary source of information and a principal contact during an audit of the board's budget conducted in the first half of 1991. Kiehner Johnson, chairman of BTA since March 1991, confirmed this testimony.

3. Sweeney and Gillivan agreed that Gillivan performed as the liaison to county auditors, handled preparation of the budget, and responded to inquiries during the audit; they disagreed with Pohler's assessment of his authority. Gillivan did not say that these projects were recently assigned by a new administration or that they were not part of his regular duties.

4. Pohler believed that since Gillivan was involved in confidential and, in effect, high-profile projects, he was serving in a fiduciary capacity to the board and had been placed in the classified service erroneously. In July 1991, she asked DAS to review Gillivan's position. DAS advised Gillivan of his unclassified status in July 1991. According to Pohler, Gillivan was discharged from BTA's employ on August 7, 1991 pursuant to an "unclassified removal," i.e., without the protections afforded by R.C. 124.34.

In addition to challenging the exclusion by the ALJ of evidence of claimed political motivation as irrelevant and inadmissible, Gillivan protests the personnel action forms that returned the Administrative Assistant 4 position to the unclassified service and documented his removal, charging that neither was completed or approved until after his discharge. The personnel action form changing his position to unclassified, in particular, purports to have retroactive effect to the date the Administrative Assistant 4 position became classified.

Michael A. Moses, Columbus, for relator.

Lee I. Fisher, Atty. Gen., Elizabeth J. Birch and Laurel D. Blum, Asst. Attys. Gen., for respondents.

PER CURIAM.

"The writ of mandamus must not be issued when there is plain and adequate remedy in the ordinary course of the law," R.C. 2731.05, and Gillivan attempts to establish this in his fourth proposition of law. In response, Perry and BTA rely on State ex rel. Weiss v. Indus. Comm. (1992), 65 Ohio St.3d 470, 605 N.E.2d 37, to argue that Gillivan has an adequate remedy and, therefore, cannot show a condition necessary for the writ to issue. We find Weiss dispositive and, therefore, do not reach Gillivan's remaining arguments.

In Weiss, an allegedly classified civil servant sought a writ of mandamus to compel her reinstatement and back pay. She had appealed several separate, but essentially contemporaneous, job actions to the State Personnel Board of Review ("SPBR"), including a change of her formerly classified status to unclassified, a reduction of her job duties, and her discharge. The employee's "declassification," like Gillivan's, was purportedly accomplished pursuant to R.C. 124.11(A)(9) (employees in fiduciary positions exempt from classified service).

SPBR singled out the declassification appeal in Weiss for dismissal, finding that it had no jurisdiction to determine classified status by declaratory judgment. 65 Ohio St.3d at 471-472, 605 N.E.2d at 38. SPBR then stayed consideration of the reduction of duties and discharge claims pending appeal of the dismissal. Id. at 472, 605 N.E.2d at 38. At the same time, however, SPBR acknowledged its jurisdiction to determine classified status in connection with adverse job actions. Id. at 471, 605 N.E.2d at 38. This conclusion follows Rarick v. Geauga Cty. Bd. of Commrs. (1980), 63 Ohio St.2d 34, 36, 17 O.O.3d 21, 22, 406 N.E.2d 1101, 1103, and Yarosh v. Becane (1980), 63 Ohio St.2d 5, 17 O.O.3d 3, 406 N.E.2d 1355, paragraph two of the syllabus, which held:

"The State Personnel Board of Review has jurisdiction over appeals from removals of public employees if it determines that such employees are in the classified service, regardless of how they...