State ex rel. v. Pub. Emps. Retirement Bd.

• Decision Date: 11 December 2007
• Docket Number: No. 04AP-1293.,04AP-1293.
• Citation: 881 N.E.2d 294,174 Ohio App.3d 135,2007 Ohio 6594
• Parties: STATE ex rel. DAVIS et al., Relators, v. PUBLIC EMPLOYEES RETIREMENT BOARD et al., Respondents.
• Court: Ohio Court of Appeals

881 N.E.2d 294

174 Ohio App.3d 135

2007-Ohio-6594

STATE ex rel. DAVIS et al., Relators, v. PUBLIC EMPLOYEES RETIREMENT BOARD et al., Respondents.

No. 04AP-1293.

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

Decided December 11, 2007.

Buckley King L.P.A., James E. Melle, and Donell R. Grubbs, Columbus, for relators.

Marc Dann, Attorney General; Jones Day, Michael R. Gladman, and Kerstin Sjoberg-Witt, Columbus, for respondent Public Employees Retirement Board,

Ron O'Brien, Prosecuting Attorney, and Nick A. Soulas, Jr.; Lane, Alton & Horst, L.L.C., and Teri G. Rasmussen, Columbus, for respondents.

FRENCH, Judge.

{¶ 1} Relators, 12 present and former Franklin County Assistant Public Defenders and support personnel hired between January 1, 1985, and January 1, 1999, bring this original action for a writ of mandamus ordering respondent, Public Employees Retirement Board ("PERB"), to vacate its determination that relators were not public employees during the period between January 1, 1985, and January 1, 1999, and, thus, were not entitled to service credit during that period under the Public Employees Retirement System ("PERS"). Relators also request that the writ compel respondents, Franklin County Board, of Commissioners, Franklin. County Public Defender Commission ("FCPDC"), Franklin County Public Defender, and Yeura Venters, as the Franklin County and city of Columbus Public Defender (collectively, "Franklin County respondents"), to remit employer and employee contributions to PERB on behalf of relators for the relevant period.

{¶ 2} This court referred this matter to a magistrate pursuant to Civ.R. 53(C) and Loc.R. 12(M) of the Tenth District Court of Appeals. The magistrate issued a decision, including findings of fact and conclusions of law, recommending that this court deny the requested writ (attached as Appendix A). Specifically, the magistrate concluded that PERB correctly determined that the doctrine of collateral estoppel or issue preclusion bars relators' claims.

{¶ 3} Relators filed objections to the magistrate's conclusions of law, and respondents filed memoranda in opposition to relators' objections. Thereafter, relators filed a reply in support of their objections, which respondents have moved this court to strike, arguing that Loc.R. 12(M) does not permit reply memoranda. Although Loc.R. 12(M)(3) requires an objecting party to file a memorandum in support of objections to a magistrate's decision simultaneously with the party's objections and clearly authorizes the filing of a memorandum in opposition to such objections, the rule does not provide for any further memoranda. Accordingly, we grant respondents' motion to strike relators' reply, and we shall not consider it in our review of relators' objections.

{¶ 4} Relators do not object to the magistrate's findings of fact, and we adopt those findings as our own. In their objections to the magistrate's conclusions of law, relators contend that the magistrate erred as a matter of law by:

1) finding and concluding that Relators' claims for retroactive service credit are barred by the doctrine of issue preclusion;

2) finding and concluding that Relators are in privity with the Relator in the case of State ex rel. Van Dyke v. Pub. Emp. Retirement Bd., 99 Ohio St.3d 430 2003-Ohio-4123 ("Van Dyke") 3) failing to consider and decide Relators' argument that the application of the preclusion doctrine in this case denies Relators due process of law; and

4) failing to examine the evidence from the Van Dyke and Mallory (State ex rel. Mallory v. Pub. Emp. Retirement Bd. (1998), 82 Ohio St.3d 235 ) cases.

Relators also argue that the magistrate's decision is against the manifest weight of the evidence because respondents did not sustain their evidentiary burden of establishing a preclusion defense. Because relators' objections all concern the applicability of issue preclusion to their claims, we address the objections together.

{¶ 5} We review the magistrate's decision independently and may "adopt or reject [the] magistrate's decision in whole or in part, with or without modification[,] * * * hear [the] * * * matter, take additional evidence, or return [the] matter to a magistrate." Civ.R. 53(D)(4)(b). We may also accept the magistrate's ultimate decision for reasons other than those addressed by the magistrate. State ex rel. Davis v. Pub. Emps. Retirement Bd., Franklin App. No. 04AP-1293, 2005-Ohio-6612, 2005 WL 3415995, at ¶ 13.

{¶ 6} A brief historical context is necessary to a discussion of relators' claims. In 1976, the General Assembly enacted R.C. Chapter 120, the Public Defenders Act, which established the Ohio Public Defender Commission and authorized counties to create county and joint-county public defender commissions. Pursuant to those provisions, the Franklin County Commissioners established FCPDC to provide legal representation to indigent persons. In accordance with R.C. 120.14, FCPDC appointed the Franklin County Public Defender, who, in turn, hired attorneys and support personnel to form the Franklin County Public Defender's Office ("FCPDO"). FCPDO operated as if it were a private, unincorporated association, and both FCPDO and its employees paid Social Security taxes on their wages.

{¶ 7} In 1984, the General Assembly enacted. R.C. 120.14(F), which authorized county and joint-county public defender commissions to contract with nonprofit organizations to provide representation to indigent criminal defendants. Thereafter, FCPDO was incorporated as a nonprofit entity on December 31, 1984. FCPDC then contracted with the Franklin County Commissioners and the city of Columbus to provide legal representation for indigent criminal defendants in Franklin County and the city of Columbus and subcontracted with the newly incorporated FCPDO to provide such services.

{¶ 8} This case is one of several concerning whether FCPDO employees qualified as public employees, as defined by R.C. 145.01(A), for purposes of PERS membership. First, in June 1998, the Ohio Supreme Court granted a writ of mandamus ordering PERB to credit a former FCPDO employee for her years of service as an attorney and law clerk with FCPDO from 1978 to 1980 and from 1982 to 1994. State ex rel. Mallory v. Public Emp. Retirement Bd. (1998), 82 Ohio St.3d 235, 694 N.E.2d 1356. In Mallory, the Supreme Court held that prior to the incorporation of FCPDO in 1984, FCPDO employees were public employees under R.C. 145.01(A):

[P]re-1984 FCPDO employees like [Mallory] were public employees during their employment with the FCPDO. Pursuant to statutory authority, FCPDO employees were employed by a county agency (the commission) and a county officer (Franklin County Public Defender Kura) to perform a governmental function, i.e., the function of providing legal representation to indigent criminal defendants, for which FCPDO employees were paid by the county.

Id. at 241, 694 N.E.2d 1356.

{¶ 9} After concluding that Mallory was a public employee entitled to PERS membership during her periods of FCPDO employment prior to FCPDO's incorporation, the Supreme Court questioned whether the 1984 enactment of R.C. 120.14(F), the. incorporation of FCPDO, and the contractual relationship between FCPDC and FCPDO terminated Mallory's continued membership in PERS. The court held that it did not, stating that an FCPDO attorney who continued to represent indigent criminal defendants after FCPDO's incorporation was entitled to continuing service credit with PERS under R.C. 145.01(A)(2). Id. at 245, 694 N.E.2d 1356. R.C. 145.01(A)(2) defines a "public employee" as "[a] person who is a member of [PERS] and who continues to perform the same or similar duties under the direction of a contractor who has contracted to take over what before the date of the contract was a publicly operated function."

{¶ 10} In August 2003, the Supreme Court again addressed the status of FCPDO employees as public employees in State ex rel. Van Dyke v. Public Emp. Retirement Bd., 99 Ohio St.3d 430, 2003-Ohio-4123, 793 N.E.2d 438. Like Mallory, Van Dyke began her employment for FCPDO prior to its incorporation. Van Dyke worked for FCPDO, first as a legal intern and later as a staff attorney, from February 1982 until November 1985, when she resigned to accept a position as a staff attorney with the Franklin County Court of Common Pleas, Division of Domestic Relations, Bureau of Support ("support bureau"). In March 1986, Van Dyke resigned her position with the support bureau, and FCPDO rehired her as a staff attorney, a position she retained until August 1991. In accordance with Mallory, PERS granted Van Dyke service credit for her FCPDO employment from February 1982 until November 1985, when she resigned. Van Dyke also received service credit for her employment with the support bureau. However, PERS denied Van Dyke service credit for her employment with FCPDO from March 1986 to August 1991, concluding that, upon her return to FCPDO, she no longer qualified as a public employee under R.C. 145.01(A)(2).

{¶ 11} After PERS denied her request for service credit from March 1986 to August 1991, Van Dyke initiated a mandamus action to compel PERB to grant her service credit for her second period of FCPDO employment. Van Dyke did not argue that FCPDO remained a public employer after its incorporation in 1984 rather, she alleged entitlement to service credit solely on the basis of R.C. 145.01(A)(2), the carryover provision at issue in Mallory. Van Dyke, 99 Ohio St.3d 430, 2003-Ohio-4123, 793 N.E.2d 438, at ¶ 15. This court agreed with Van Dyke's contention that she was a carryover employee when she returned to FCPDO from her position with the support bureau. The Supreme Court disagreed, concluding that R.C. 145.01(A)(2) was inapplicable to Van Dyke's re-employment by FCPDO because "she was not `continuing' her employment with a private contractor that was taking over a previously publicly operated function." Id. at ¶...