State ex rel. Van Dyke v. Pub. Emp. Retirement Bd.

• Decision Date: 20 August 2003
• Docket Number: No. 2002-1803.,2002-1803.
• Citation: 99 Ohio St.3d 430,793 NE 2d 438
• Parties: THE STATE EX REL. VAN DYKE, APPELLEE AND CROSS-APPELLANT, v. PUBLIC EMPLOYEES RETIREMENT BOARD ET AL., APPELLANTS AND CROSS-APPELLEES.
• Court: Ohio Supreme Court

99 Ohio St.3d 430

2003-Ohio-4123

793 NE 2d 438

2003-Ohio-4123

THE STATE EX REL. VAN DYKE, APPELLEE AND CROSS-APPELLANT, v. PUBLIC EMPLOYEES RETIREMENT BOARD ET AL., APPELLANTS AND CROSS-APPELLEES.

No. 2002-1803.

Supreme Court of Ohio.

Submitted June 3, 2003.

Decided August 20, 2003.

Dennis C. Belli, for appellee and cross-appellant.

Jim Petro, Attorney General, Joseph M. Marotta and Michael R. Gladman, Assistant Attorneys General, for appellant and cross-appellee Public Employees Retirement Board.

Ron O'Brien, Franklin County Prosecuting Attorney, and Nick A. Soulas Jr., Assistant Prosecuting Attorney, for appellant and cross-appellee Franklin County Board of Commissioners.

Per Curiam.

[793 NE 2d 431]

{¶ 1} 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. Am.Sub.H.B. No. 164, 136 Ohio Laws, Part I, 1868. Pursuant to these provisions, appellant and cross-appellee Franklin County Board of Commissioners established the Franklin County Public Defender Commission to provide legal representation to indigent persons as required by law, and the commission appointed the Franklin County Public Defender.

{¶ 2} The public defender then hired attorneys and support personnel to form the Franklin County Public Defender's Office ("FCPDO"). The FCPDO operated as if it were a private, unincorporated association, and both FCPDO and its employees paid Social Security taxes on their wages.

{¶ 3} In February 1982, appellee and cross-appellant, Omia Nadine Van Dyke, began working for FCPDO as a legal intern. In November 1983, upon her admission to the Ohio bar, FCPDO promoted Van Dyke to the position of staff attorney. In that position, Van Dyke's duties included representing indigent persons charged with felonies or serious misdemeanors and representing indigent persons in civil-commitment proceedings.

{¶ 4} 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. Am.Sub. S.B. No. 271, 140 Ohio Laws, Part I, 949, 956-957. In December 1984, FCPDO incorporated as a nonprofit corporation. The Franklin County Public Defender Commission then contracted with the Franklin County Board of Commissioners and the city of Columbus to provide legal representation for indigent criminal defendants in Franklin County, and the commission subcontracted with the newly incorporated FCPDO to provide these services.

{¶ 5} In November 1985, Van Dyke resigned her position with FCPDO and began working as a staff attorney in the Bureau of Support of the Franklin County Court of Common Pleas, Division of Domestic Relations. Van Dyke's duties at the bureau of support included enforcing support orders by civil contempt and other civil proceedings.

{¶ 6} In March 1986, Van Dyke resigned her position with the bureau of support. In her letter of resignation, Van Dyke specified that she missed the work that her job with the bureau of support did not provide:

{¶ 7} "I cannot deny that I miss terribly the trial work and the one to one representation of clients that this job does not afford."

{¶ 8} In April 1986, FCPDO rehired Van Dyke as a staff attorney, and she remained at that job until she resigned in August 1991 and was appointed to her

[793 NE 2d 432]

current position as a magistrate for the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch.

{¶ 9} In June 1998, we granted a writ of mandamus directing appellant Public Employees Retirement Board ("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. Pub. Emp. Retirement Bd. (1998), 82 Ohio St.3d 235, 694 N.E.2d 1356. We held that pre-1984 FCPDO attorneys were public employees during their employment with FCPDO. Id. at 241, 694 N.E.2d 1356. We further held that after the 1984 enactment of R.C. 120.14(F) and the incorporation of FCPDO as a nonprofit organization, FCPDO attorneys who continued to represent indigent criminal defendants retained their rights to service credit with the Public Employees Retirement System ("PERS") under R.C. 145.01(A)(2). Id. at 245, 694 N.E.2d 1356.

{¶ 10} Following Mallory, PERS credited Van Dyke with her years of service with FCPDO from February 1982 to November 1985. PERS also credited Van Dyke for her bureau-of-support employment (November 1985 to March 1986) and her juvenile-court employment (August 1991 to present). PERS, however, refused to give Van Dyke service credit for her employment with FCPDO from April 1986 to August 1991.

{¶ 11} In April 2000, Van Dyke requested that PERS grant her service credit for the period from April 1986 to August 1991. In September 2000, PERS denied Van Dyke's request for credit because she did not qualify under R.C. 145.01(A)(2). In January 2001, Van Dyke requested a PERS staff determination concerning her second period of employment with FCPDO.

{¶ 12} In April 2001, PERS rendered a final staff determination in which it denied Van Dyke's request for service credit for the subject period. PERS determined that Van Dyke was not a public employee and consequently was not entitled to PERS service credit during the period:

{¶ 13} "Employees of private employers are not eligible for PERS coverage. Public employees whose public employers outsource the work and employees to private contractors, become private employees. But for R.C. 145.01(A)(2) these employees would lose their public retirement benefits through no fault of their own. However, when one of these carryover employees leaves employment under the private contractor, the protection of the statute ends. If they return to the private contractor they do so as a new hire and are subject solely to those retirement benefits provided by the contractor such as Social Security and any other plan offered by the contractor." (Citations omitted.)

{¶ 14} Van Dyke appealed the staff determination to PERB. In June 2001, PERB upheld the determination that Van Dyke was not a public employee for

[793 NE 2d 433]

PERS purposes for her employment with FCPDO from April 1986 to August 1991.

{¶ 15} In July 2001, Van Dyke filed a complaint in the Court of Appeals for Franklin County for a writ of mandamus to compel appellant and cross-appellee PERB to grant her PERS membership status and service credit for her FCPDO employment from April 1986 to August 1991. Van Dyke also sought to order the Franklin County Board of Commissioners to remit the employer and employee contributions to PERS for credit to her retirement account. In her amended complaint, Van Dyke alleged that she was entitled to mandamus relief because PERB had abused its discretion by denying her request for PERS membership and service credit for her April 1986 to August 1991 FCPDO employment. Van Dyke further claimed that the Franklin County Board of Commissioners abused its discretion by failing to make employer contributions and deduct employee contributions for this period. Van Dyke alleged entitlement to the requested writ solely because of R.C. 145.01(A)(2).

{¶ 16} In January 2002, the court of appeals magistrate recommended denying the writ because Van Dyke had "not established that PERB abused its discretion when it determined that she had ceased being a carry-over employee who was considered to be a `public employee' with the FCPDO when she terminated her employment with the FCPDO." In addition, the magistrate found that Van Dyke had waived her constitutional claims by not raising them in either her complaint or her amended complaint.

{¶ 17} Van Dyke objected to the magistrate's decision on the grounds that (1) the decision was not supported by the evidence and was contrary to law and (2) the procedural rulings denied her constitutional rights. Van Dyke had also moved to set aside the magistrate's order striking her and her attorney's affidavits.

{¶ 18} In September 2002, the court of appeals adopted the magistrate's findings of fact, but it sustained Van Dyke's first objection to the magistrate's decision and rejected the magistrate's conclusions of law. The court of appeals reasoned that because Van Dyke had "continued in an unbroken chain of service as an attorney for the county and a public employee when she returned to the FCPDO and resumed her duties as a staff attorney," she was "a public employee pursuant to R.C. 145.01(A), and consequently was entitled to membership status and service credits in PERS for the time period of April 10, 1986 to August 21, 1991." Because the court of appeals sustained Van Dyke's first objection, it did not address the merits of her remaining objection or her motion to set aside the magistrate's order striking the affidavits.

[793 NE 2d 434]

{¶ 19} This cause is now before the court upon the appeals of right of PERB and the Franklin County Board of Commissioners as well as the cross-appeal of Van Dyke.

Mandamus

{¶ 20} Appellants and cross-appellees assert that the court of appeals erred in granting Van Dyke the requested writ of mandamus. "Mandamus is an appropriate remedy where no statutory right to 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, 1114. Because there is no statutory right to appeal PERB's denial of service credit to Van Dyke, mandamus is an available remedy. See Mallory, 82 Ohio St.3d at 239, 694 N.E.2d 1356; Ohio Adm.Code 145-1-11(D) ("The retirement board's decision on any determination conducted pursuant to this rule shall be final and determinative").

{¶ 21} In order to be entitled to the requested writ of mandamus, Van Dyke had to...