State ex rel. Schachter v. Pub. Emps. Retirement Bd.
| Decision Date | 16 April 2009 |
| Docket Number | No. 2008-1561.,2008-1561. |
| Parties | The STATE ex rel. SCHACHTER, Appellant, v. OHIO PUBLIC EMPLOYEES RETIREMENT BOARD et al., Appellees. |
| Court | Ohio Supreme Court |
Buckley King, L.P.A., and James E. Melle, Columbus, for appellant.
Richard Cordray, Attorney General, and Laura Erebia Parsons, Assistant Attorney General, for appellee Ohio Public Employees Retirement Board.
Millisor & Nobil Co., L.P.A., Robert E. Dezort, and Scott A. Lefelar, Cleveland, for appellee Summit County.
{¶ 1} This is an appeal from a judgment denying a writ of mandamus to compel the retirement board of the Public Employees Retirement System ("PERS") to find that Patti Schachter is a public employee, credit her with PERS service credit, and assess Summit County for all sums due to PERS for the service credit. Because PERS and its retirement board did not abuse their discretion in concluding that res judicata barred Schachter's claim for service credit, we affirm the judgment of the court of appeals.
{¶ 2} The Akron Bar Association, with the cooperation and support of appellee Summit County, procured a series of grants to provide representation for indigent criminal defendants, which led to the creation of the Summit County Legal Defender Office in 1973. The bar association hired Joseph Kodish as the director of the Legal Defender Office. Appellant, Patti Schachter, began working in the Legal Defender Office as an intern in 1976 and then, aside from a brief period with the United States Army Judge Advocate General Corps, worked as a staff attorney beginning in 1979 until she was promoted to deputy director in 2001. During Schachter's employment with the Legal Defender Office, Kodish was her supervisor. In 1999, the Legal Defenders Office of Summit County, Ohio, Inc., a nonprofit organization, was established, and Kodish was named its director.
{¶ 3} In June 1998, we granted a writ of mandamus to compel appellee PERS retirement board to credit a former Franklin County Public Defender's Office employee for her 14 years of service as an attorney and law clerk with the office. State ex rel. Mallory v. Pub. Emp. Retirement Bd. (1998), 82 Ohio St.3d 235, 694 N.E.2d 1356.
{¶ 4} In March 1999, Kodish submitted a joint request to PERS for service credit for him and certain co-workers, including Schachter, for their employment with the Summit County Legal Defender Office. The joint submission included Schachter's supplemental history record, in which she specified that she was applying for PERS service credit for her employment with the Legal Defender Office. The joint request for PERS service credit was based on our holding in Mallory.
{¶ 5} A PERS staff member notified Kodish and the Summit County Auditor that he had determined that pursuant to Mallory, 82 Ohio St.3d 235, 694 N.E.2d 1356, the Summit County Legal Defender Office "was a public employer and contributions should have been submitted to PERS on behalf of the employees of the [office]." PERS sent additional forms to Schachter relating to her claim for PERS service credit, and she returned the completed forms to PERS.
{¶ 6} Summit County appealed the initial staff determination, and in December 2003, PERS's general counsel determined that "the Summit County Legal Defender Office was not operating as a public employer for OPERS purposes" and that "Kodish and the other employees are not public employees and are not subject to OPERS coverage."
{¶ 7} Kodish, who was represented by counsel, appealed the PERS determination pursuant to Ohio Adm.Code 145-1-11. An evidentiary hearing was subsequently held before a hearing examiner appointed by the retirement board. At the hearing, Schachter testified on behalf of Kodish. Schachter's testimony included the following pertinent exchanges:
{¶ 8} "Q. Did you seek service credit with PERS?
{¶ 9} "A. I think the point of being here today is to get credit with PERS.
{¶ 10} "* * * {¶ 11} "HEARING EXAMINER McNEIL: When you responded to the question whether you have tried to make a claim for PERS membership or PERS eligibility, I think your answer was, yes, I am, correct?
{¶ 12} "THE WITNESS: Correct.
{¶ 13} "HEARING EXAMINER McNEIL: So you've actually filed a claim?
{¶ 14} "THE WITNESS: I was under the belief that the action that Mr. Kodish is filing included myself, Ms. Marks, Ron Froble and two other people."
{¶ 15} Although Kodish's counsel then informed the hearing examiner that he represented only Kodish, the hearing examiner noted that Schachter had testified that she believed that she would benefit from the outcome of Kodish's appeal and that if the finding were adverse to Kodish, "it may well have a preclusive effect on her as well."
{¶ 16} The hearing examiner issued a report finding that throughout his service as Director of the Summit County Legal Defender Office, Kodish was an employee of the Akron Bar Association, which is a private employer, and that he was not a public employee between 1973 and 1999. The hearing examiner recommended that the retirement board deny Kodish's appeal because he "was properly treated as a[] private employee of a private employer and [was] not eligible for membership in the Ohio Public Employees Retirement System between 1973 and 1999." In May 2005, the retirement board adopted the hearing examiner's findings of fact and conclusions of law and found that "Kodish was not a public employee while employed as the Director of the Legal Defender Office in Summit County and Summit County Public Defender for the period 1973 through 1999, and therefore is not eligible for OPERS coverage for that time period."
{¶ 17} In May 2006, Schachter made a second request for PERS service credit for her employment with the Summit County Legal Defender Office beginning in 1976. In her lengthy request, which included legal arguments presented by her attorney, Schachter did not mention anything about her first request for PERS service credit or the Kodish appeal.
{¶ 18} A few weeks later, a PERS staff member denied Schachter's second request because of PERS's previous "determination that employees of the Summit County Legal Defender Office were not public employees as defined in Section 145.01(A) of the Ohio Revised Code due to the Office not being a public employer as defined in Section 145.01(D) of the Ohio Revised Code."
{¶ 19} Schachter then appealed the staff determination and requested a hearing before an independent hearing examiner. PERS's general counsel rejected Schachter's request because of the retirement board's previous determination in the Kodish appeal:
{¶ 20}
{¶ 21} Schachter then filed a complaint for a writ of mandamus in the Court of Appeals for Franklin County. In a subsequently filed amended complaint against appellees, the PERS retirement board and Summit County, Schachter requested a writ of mandamus to compel the retirement board to find that Schachter had been a public employee during her employment with the Summit County Legal Defender Office, credit her with PERS service credit, and assess Summit County for all sums due to PERS for the service credit. Appellees filed answers, and the parties filed evidence and briefs.
{¶ 22} In July 2008, the court of appeals denied the writ. The court of appeals determined that PERS and its retirement board did not abuse their discretion when they denied Schachter's second application for PERS service credit based on the board's decision in the Kodish appeal.
{¶ 23} This cause is now before the court upon Schachter's appeal as of right.
{¶ 24} Schachter seeks a writ of mandamus to compel the retirement board to grant her second application for PERS service credit. "[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. Pipoly v. State Teachers Retirement Sys., 95 Ohio St.3d 327, 2002-Ohio-2219, 767 N.E.2d 719, ¶ 14. "Because there is no statutory right to appeal the retirement board's denial of service credit, mandamus is an appropriate remedy." State ex rel. Schaengold v. Ohio Pub. Emps. Retirement Sys., 114 Ohio St.3d 147, 2007-Ohio-3760, 870 N.E.2d 719, ¶ 8; R.C. 145.01(A)(4) (); Ohio Adm.Code 145-1-11(D) ().
{¶ 25} Therefore, to be entitled to the requested writ of mandamus, Schachter had to establish that PERS or the retirement board abused its discretion by denying her request for PERS service credit. See State ex rel. Davis v. Pub. Emps. Retirement Bd., 120 Ohio St.3d 386, 2008-Ohio-6254, 899 N.E.2d 975, ¶ 25. To prove an abuse of discretion, Schachter must show that the administrative decision was unreasonable, arbitrary, or unconscionable. State ex rel. Duncan v. Middlefield, 120 Ohio St.3d 313, 2008-Ohio-6200, 898 N.E.2d 952, ¶ 27.
{¶ 26} PERS staff determined that Schachter's second application for service credit for her employment with the Summit County Legal Defender Office was barred by res judicata because of...
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