IN THE SUPREME COURT OF OHIO HELEN L. SAXE, V. APPELLANT, On Appeal from the Franklin County Court of Appeals, Tenth Appellate District THE OHIO DEPARTMENT OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES APPELLEE. Court of Appeals Case No. 09AP-1022 MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT HELEN L. SAXE Samuel N. Lillard (#0040571) Brett E. Younkin (#0076382) Anthony D. Dick (#0084913) McNees Wallace & Nurick LLC 21 East State Street, 17`h Floor Columbus, Ohio 43215 (Ph) (614) 469-8000 (Fx) (614) 469-4653 [email protected][email protected][email protected]Counsel for Appellant, Helen L. Saxe Richard Cordray (#003 8034) Nicole S. Moss (#0062938) Mahjabeen F. Qadir (#0079900) Ohio Attorney General's Office Employment Law Section 30 East Broad Street, 23`d Floor Columbus, Ohio 43215 (Ph) (614) 644-7257 (Fx) (614) 752-4677 Oa 297010 CLERK OF COURT SUPREME COURT OF OHIO Counsel for Appellee, The Ohio Department of Mental Retardation and Developmental Disabilities
Transcript
IN THE SUPREME COURT OF OHIO
HELEN L. SAXE,
V.
APPELLANT, On Appeal from the FranklinCounty Court of Appeals,Tenth Appellate District
THE OHIO DEPARTMENT OFMENTAL RETARDATION ANDDEVELOPMENTAL DISABILITIES
APPELLEE.
Court of AppealsCase No. 09AP-1022
MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT HELEN L. SAXE
Samuel N. Lillard (#0040571)Brett E. Younkin (#0076382)Anthony D. Dick (#0084913)McNees Wallace & Nurick LLC21 East State Street, 17`h FloorColumbus, Ohio 43215(Ph) (614) 469-8000(Fx) (614) [email protected]@[email protected]
Counsel for Appellant, Helen L. Saxe
Richard Cordray (#003 8034)Nicole S. Moss (#0062938)Mahjabeen F. Qadir (#0079900)Ohio Attorney General's OfficeEmployment Law Section30 East Broad Street, 23`d FloorColumbus, Ohio 43215(Ph) (614) 644-7257(Fx) (614) 752-4677
Oa 297010
CLERK OF COURTSUPREME COURT OF OHIO
Counsel for Appellee, The Ohio Department ofMental Retardation and Developmental Disabilities
TABLE OF CONTENTS
Page
EXPLANATION OF WHY THIS CASE IS OF PUBLIC ORGREAT GENERAL INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
STATEMENT OF THE CASE AND FACTS ................................. 4
ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ............. 6
Proposition of Law No. I: Pursuant to R.C. § 124.03(A)(1), SPBRhas jurisdiction to consider appeals of all classified civil servants,regardless of how such persons came to be in the classifiedcivil service system .... . ........ ......... ...... . ..... ... ...... ..... . ... .. . ... 6
EXPLANATION OF WHY THIS CASE IS OFPUBLIC OR GREAT GENERAL INTEREST
This case concerns a classified employee's appeal of the abolishment of her
classifed position to the Personnel Board of Review. Appellant Helen L. Saxe's ("Ms.
Saxe") appeal to the State of Ohio Personnel Board of Review ("SPBR") requested that
the abolishment of her classified position be disaffirmed for the following three reasons':
1. The appointing authority violated O.A.C. § 123:1-41-08(F) by placing Ms.Saxe into a classified position after the position had been slated forabolishment;
Her layoff was in bad faith as the rationale submitted to the Department ofAdministrative Services ("DAS") stated that the appointing authoritysought to abolish Ms. Saxe and not the position she held; and
3. The layoff rationale submitted to DAS did not contain the requiredsubstantive rationale required by R.C. § 124.321.
After conducting a record hearing, SPBR held that it did not have jurisdiction over Ms.
Saxe's appeal of the abolishment of her classified position because she had previously
held an unclassified position with fallback rights. This decision was erroneously
affirmed by the Tenth District Court of Appeals.
This outcome raises a critical issue of importance regarding the proper parameters
of the State of Ohio Personnel Board of Review's ("SPBR") legal jurisdiction. If the
Tenth District Court of Appeal's holding in this matter is allowed to stand, classified civil
servants in the State of Ohio who have gained that status by virtue of exercising their
statutory fallback rights will no longer be able to challenge the legality of a state agency's
actions through SPBR. In one fell swoop, the decision of the court of appeals essentially
1 Each of these three separate justifications to disaffirm the abolishment of Ms. Saxe'sclassified position were raised at the record hearing in this matter. See Record HearingTranscript at PP. 172-176.
3
abrogates all the protections of Ohio's civil service laws for thousands of classified civil
service employees in the state who are members of the classified civil service as a result
of exercising their statutory fallback rights. In addition, this outcome, if not corrected,
will allow future unchecked bad faith prepositioning of civil service employees to
effectuate a desired result in violation of Ohio law.
STATEMENT OF THE CASE AND FACTS
This appeal arises out of the Tenth Appellate District's unnecessarily restrictive
interpretation of the SPBR's jurisdictional limits. Ms. Saxe began her career in the Ohio
civil service on July 30, 1979. Over the many years of her employment, Ms. Saxe was
progressively promoted until she reached the position of Mental Health Administrator 5
with The Ohio Department of Mental Retardation and Developmental Disabilities. On
May 5, 1991, Ms. Saxe's position as a Mental Health Administrator 5 was converted
from a classified position in the Ohio civil service to an unclassified position with the
same title and duties. In January of 2005, DAS renumbered the Mental Health
Administrator series of positions causing each position to increase by one number, i.e. a
Mental Health Administrator 5 became a Mental Health Administrator 6. Due to the
renumbering, Ms. Saxe's job title changed to Mental Health Administrator 6,
unclassified.
On November 20, 2005, due to a reorganization within the agency, Appellee
revoked Ms. Saxe's unclassified Mental Health Administrator 6 position. Upon the
revocation, Ms. Saxe maintained fallback rights to resume the position she held in the
classified service immediately prior to her to her appointment to the unclassified service
pursuant to R.C. § 5123.08 and O.A.C. § 5123-7-11. As a result, on November 20, 2005,
4
Appellee placed Ms. Saxe into a classified Mental Health Administrator 6 position as it
was obligated to do. However, sixteen (16) days prior to placing Ms. Saxe into the
classified Mental Health Administrator 6 position, Appellee had already requested DAS's
permission to abolish the classified position. Appellee's actions in placing Ms. Saxe into
a position slated for abolishment is a clear violation of O.A.C. §§ 123:1-41-08(F) and
124-7-01. The effective abolishment of Ms. Saxe's classified position actually occurred
on February 18, 2006.
On December 21, 2005, Ms. Saxe timely appealed the lawfulness of her
displacement and layoff to SPBR. A record hearing was held on September 25, 2008.
The Administrative Law Judge issued a Report and Recommendation on February 19,
2009 holding that SPBR was without jurisdiction to consider whether Ms. Saxe's layoff
from her classified position violated Ohio's civil service law. On March 4, 2009, Ms.
Saxe filed her Objections to the Report and Recommendation. On May 7, 2009, SPBR
adopted the Report and Recommendation without substantive comment and affirmed Ms.
Saxe's layoff. Ms. Saxe timely appealed the decision to the Franklin County Court of
Common Pleas. The common pleas court affirmed the Board's decision on October 6,
2009. Thereafter, Ms. Saxe appealed to the Tenth District Court of Appeal. The court of
appeals affirmed the trial court's decision finding "that the Board was correct in its
decision that it lacked jurisdiction because the issue raised by appellant concerns the
revocation of an unclassified appointment..." Tenth Appellate District Decision at P. 6.
Ms. Saxe has argued at every stage of this case that SPBR does have jurisdiction
pursuant to R.C. § 124.03(A)(1) over Appellee's actions in placing Ms. Saxe into a
classified civil service position and subsequently abolishing that position. As a classified
civil servant effective November 20, 2005, Ms. Saxe should have been permitted to
challenge the validity of Appellee's actions in abolishing her classified Mental Health
Administrator 6 position which took place on February 18, 2006.
In support of her position on these issues, Ms. Saxe presents the following
argument.
ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW
Proposition of Law No. I: Pursuant to R.C. § 124.03(A)(1), SPBR has jurisdiction to
consider appeals of all classified civil servants, regardless of how such persons came
to be in the classif•ied civil service system.
All classified civil servants in the State of Ohio enjoy certain statutory rights and
protections under the Ohio Revised Code and Administrative Code. Those rights and
protections include:
(1) the right to not be removed from the classified service except inaccordance with R.C. § 124.34;
(2) the right to not be placed into a position after it has been identified forabolishment. O.A.C. 123:1-41-08(F) amplifying R.C. § 124.323, R.C.§ 124.324 and R.C. § 124.325;
(3) a requirement that the appointing authority prove that the offeredrationale for the abolishment is proper and that the substantive reasonfor the abolishment is sufficient. R.C. § 124.321(D), Penrod v. OhioDept. of Administrative Services, (2007) 113 Ohio St.3d 239, 243,2005-Ohio-2374 citing State ex rel. Bispeck v. Trumbull Cty. Bd. OfCommrs., (1988) 37 Ohio St.3d 26, 29; and
(4) the right that any abolishment of a civil service position beaccomplished in good faith and not as a subterfuge to remove aperson. R.C. § 124.321, Penrod v. Ohio Dept. of AdministrativeServices, (2007) 113 Ohio St.3d 239, 242, 2005-Ohio-2374 citingWeston v. Ferguson, (1983) 8 Ohio St.3d 52, 54.
6
Ms. Saxe, by virtue of re-entering the classified civil service on November 20, 2005,
should have been permitted to enjoy these substantive rights and protections as well. In
this matter, however, Ms. Saxe's statutory rights under the civil service laws were clearly
violated by the appointing authority.
It is not in dispute that Ms. Saxe was placed into her classified Mental Health
Administrator 6 classified position sixteen (16) days after Appellee sought permission
from DAS to abolish the position. Appellee's conduct should have been seen as a cut and
dry violation of O.A.C. 123:1-41-08(F). Further, the rationale submitted to DAS to
abolish Ms. Saxe's classified civil service position did not contain a valid, substantive
reason to effectuate the abolishment. In pertinent part, the rationale submitted to DAS to
abolish Ms. Saxe's classified position states:
State the specific reason(s) why this position is no longer needed:This position has been created in order to provide the required back upposition under MRDD's revocation rule 5123.08. The employee who wasrevoked has a back up right to this, her former classified position ofMHA6...
(Emphasis added).
Even the most cursory review of the rationale submitted to DAS should reveal that it does
not comply with R.C. § 124.321 in that the rationale does articulate a valid reason to
may abolish positions for any one or any combination of the following reasons: as a
result of a reorganization for the efficient operation of the appointing authority, for
reasons of economy, or for lack of work."
Still further, it should be clear that Appellee sought to abolish a person and not a
position in violation of the Administrative Code and established Ohio Supreme Court
7
precedent. O.A.C. § 124-7-01 provides that job abolishments and layoffs shall be
disaffirmed if the action was taken in bad faith. In State ex rel. Gould v. Bur. of Emn.
Serv., (10`h App. Dist. 1985), 28 Ohio App.3d 30, 32, the Tenth District Court of Appeals
determined that "[b]ad faith may be established by showing appropriate evidence or
inferences that the job abolishments were not made in good faith and were used as a
subterfuge to subvert the civil service system. In Weston v. Ferguson (1983), 8 Ohio St.
3d 52, this Court held that a civil service employee may not be removed under the guise
of abolishing his office when in fact the transaction amounts to no more than a change in
the name of the position and the appointment of another person, with their duties
remaining substantially the same; the theory is that "a position may be abolished but
not a person:" (Emphasis added). In its stated rationale to DAS, Appellee indicates that
the abolishment of Ms. Saxe's classified position was made to remove "her." As argued
throughout, this should have been viewed as clear proof of Appellee's intent to abolish a
person and not a position. Further, the only witness offered by Appellee at the record
hearing in this matter clearly and unequivocally testified that "the whole rationale that
was submitted to D.A.S. was intended to abolish Ms. Saxe's fallback position." This
justification offered by Appellee simply does not exist under Ohio law and SPBR should
have disaffirmed Appellee's actions.
These violations of the law should not have been allowed to withstand judicial
scrutiny. Unfortunately, SPBR and then the lower courts each claimed jurisdictional
blindness to these clear violations of the law. As articulated throughout this dispute, R.C.
§ 124.03(A)(1) provides unconditional or unqualified jurisdiction to SPBR to hear
appeals of all classified employees. R.C. § 124.03(A)(1) states specifically that:
8
(A) The state personnel board of review shall exercise the followingpowers and perform the following duties:
(1) Hear appeals, as provided by law, of employees in the classifiedstate service from final decisions of appointing authorities or thedirector of administrative services relative to reduction in pay orposition, job abolishments, layoff, suspension, discharge, assignmentor reassignment to a new or different position classification...
(Emphasis added).
This code section contains no exceptions. Nor does this statute contain any language
limiting SPBR's jurisdiction simply because a classified employee gained such status due
to an unclassified revocation resulting in a civil servant exercising his or her fallback
rights. Simply put, under R.C. § 124.03(A)(1), SPBR has jurisdiction to hear appeals of
all classified civil service employees. The court of appeals' determination that SPBR did
not have jurisdiction in this matter is not grounded in the language of the statute or any
other relevant precedent.
The court of appeals' affirmance of this unnecessarily narrow interpretation of
R.C. § 124.03(A)(1) essentially divests any state employee re-entering the classified
service after an unclassified appointment of all the civil service rights and protections
contained in R.C. Chapter 124. If the decision in this case is allowed to stand, appointing
authorities will be able to game the civil service system at-will due to the loophole
created by the court of appeals. For example, if an appointing authority determined it no
longer wanted to retain a particular classified employee, it could move the employee into
an unclassified position under the guise of a promotion. The appointing authority could
then revoke the unclassified position. If the employee exercised his or her fallback rights,
the appointing authority could do what Appellee did here and immediately move the
employee into a classified position slated for abolishment. Based on the court of appeals'
9
holding, the employee would have no recourse to challenge the appointing authority's
actions with SPBR. It becomes clear how the court of appeals' decision could potentially
eviscerate the protections of Ohio's civil service laws for a great number of civil service
employees statewide.
Additionally, the Tenth Appellate District's decision essentially abrogates recent
key holdings from this Court. In Penrod v. Ohio Dept. of Administrative Services,
(2007) 113 Ohio St.3d 239, 243, 2007-Ohio-1688, this Court determined that in order to
abolish a classified employee's position, the appointing authority bears the burden of
proving the sufficiency of the substantive reason for the abolishment. And further, that
an appointing authority cannot use a job abolishment as a pretense to target a specific
employee. Id. In State ex rel. Asti v. Ohio Dept. of Youth Services, (2005) 107 Ohio
St.3d 262, 2005-Ohio-6432, the Ohio Supreme Court held that fallback rights are real and
tangible and that an unclassified employee who was previously a member of the
classified service has a right to resume his or her previous position in the classified
service with all the protections that come along with being a member of the classified
civil service, including the right to not be removed from the classified service except for
the reasons outlined in R.C. § 124.34. The court of appeals' decision in this matter
removes these protections from any civil service employee who has the misfortune of
returning to the classified civil service after an unclassified appointment.
CONCLUSION
For the reasons articulated above, Appellant Helen L. Saxe respectfully submits
that this case involves matters of great and significant interest that impacts on state
employees and agencies throughout the State of Ohio. Therefore, Appellant requests that
10
this Court accept jurisdiction in this case so that the important issue presented will be
reviewed on its merits.
Respectfully submitted,
l N,5jiil'ard (#0040571)ett E. Younkin (#0076382)
Anthony D. Dick (#0084913)21 East State Street, 17`h FloorColumbus, Ohio 43215(Ph) (614) 469-8000(Fx) (614) [email protected]@[email protected]
Counselfor Appellant, Helen L. Saxe
11
CERTIFICATE OF SERVICE
I hereby certify that a copy of this Memorandum in Support of Jurisdiction was
sent by ordinary U.S. mail to counsel for Appellee, Richard Cordray, Nicole S. Moss and
Mahjabeen F. Qadir, Ohio Attorney General's Office, Employment Law Section, 30 East
Broad Street, 23`d Floor, Columbus, Ohio 43215, on this the oc,7 ^ y of October 2010.
Counsel for Appellant, Helen L. Saxe
12
IN THE SUPREME COURT OF OHIO
HELEN L. SAXE,
V.
APPELLANT, On Appeal from the FranklinCounty Court of Appeals,Tenth Appellate District
THE OHIO DEPARTMENT OF Court of AppealsMENTAL RETARDATION AND Case No. 09AP-1022DEVELOPMENTAL DISABILITIES
APPELLEE.
APPENDIX
Judgment Entry, Tenth District Court of Appeals(Sept. 16, 2010) ...............................................................
Decision of the Tenth District Court of Appeals(Sept. 16, 2010) ...............................................................
Decision of the Franklin County Court of Common Pleas(Oct. 6, 2009) ... ... . ..... . .. ......... ....... .. ..................... ... ...... ...
Report and Recommendation of SPBR(Feb. 19, 2009) .................................................................
n.,.,OFpFp^AL
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
ti. GNttzJEo SEP 16
PH 2: 4
CLLI {{ OF COIJRTS
Helen L. Saxe,
Appellant-Appellant,No. 09AP-1022
V . (C.P.C. No. 09CVF-05-7403)
The Ohio Department of MentalRetardation and DevelopmentalDisabilities,
(REGULAR CALENDAR)
Appellee-Appellee.
JUDGMENT ENTRY
For the reasons stated in the decision of this court rendered herein on
September 16, 2010, appellant's two assignments of error are overruled, and it is the
judgment and order of this court that the judgment of the Franklin County Court of
Common Pleas is affirmed. Costs shall be assessed against appellant.
Ftt:^U^:f'APpc.iN C0. OHlc
IN THE COURT OF APPEALS OF OHIC) SEP 16 P
H 2: 4 7TENTH APPELLATE DISTRICT CLeRKOY COURTS
Helen L. Saxe,
Appellant-Appellant,No. 09AP-1022
V (C.P.C. No. 09CVF-05-7403)
The Ohio Department of MentalRetardation and DevelopmentalDisabilities,
(REGULAR CALENDAR)
Appellee-Appellee.
D E C I S I O N
Rendered on September 16, 2010
McNees Wallace & Nurick LLC, Samuel N. Lillard, Brett E.Younkin and Anthony Dick, for appellant.
Richard Cordray, Attorney General, Nicole S. Moss andMahjabeen F. Qadir, for appellee.
APPEAL from the Franklin County Court of Common Pleas.
McGRATH, J.
{11} Appellant, Helen L. Saxe, appeals from the judgment of the Franklin County
Court of Common Pleas affirming an order of the State Personnel Board of Review ("#he
Board").
{12} The underlying facts are not in dispute as the parties have stipulated to the
following. Appellant was hired by appellee, Ohio Department of Mental Retardation and
Developmental Disabilities ("MRDD"), effective July 30, 1979, and held the classified
No. 09AP-1022 2
position of Mental Health Administrator ("MHA") 5. In 1991, the position was designated
as unclassified MHA5, but the position held essentially the same job duties. In January
2005, the Department of Administrative Services ("DAS"), renumbered the MHA positions
causing each position to increase by one number, i.e., MHA5 became MHA6.
{¶3} On November 4, 2005, while appellant was an unclassified MHA6, MRDD
sent DAS a reorganization plan, which included a rationale for a reduction of its workforce
and a layoff rationale for the MHA6 classified position. On Novemtier 20, 2005,
appellant's MHA6 unclassified position was revoked, and she was placed as a classified
MHA6 pursuant to her fallback rights. On December 12, 2005, DAS sent a letter to
MRDD authorizing it to begin its reorganization, including the abolishment of the MHA6
position. Days later, appellant was informed of her bumping rights. On February 18,
2006; the reorganization went into effect, appellant's classified MHA6 position was
abolished,.and appellant bumped into a classified MHA4 position. Fivemonths later,
appellant took advantage of the Early Retirement Incentive Program ("ERIP"), and retired
effective July 31, 2006.
{1[4} Appellant appealed the abolishment of the MHA6 position to the Board.
Appellant argued that MRDD created the dassified MHA6 position and placed her there
in an effort to deny appellant her fallback rights; therefore, appellant argued that she was
entitled to fallback into her previous classified position of MHA6 and a finding that her
reorganization into the MHA4 position was a legal nullity. To the contrary, MRDD argued
that, pursuant to R.C. 5123.08, appellant was given her fallback rights because she was
placed in an MHA6 classified position after her unclassified MHA6 appointment was
revoked. An administrative law judge ("ALJ"), issued a report and recommendation
No. 09AP-1022 3
holding that the Board did not have jurisdiction to consider the issue of fallback rights,
and, therefore, the ALJ made no findings regarding whether or not appellant was properly
allowed to exercise the same. Additionally, the ALJ found that appellee complied with the
procedural requirements in effectuating the abolishment of appellant's classified MHA6
position and her subsequent displacement to the classified MHA4 position she held at the
time of her retirement.
{y}5} Appeilant filed objections to the report and recommendation, and after
review, the Board adopted the ALJ's report and recommendation. Appellant appealed to
the Franklin County Court of Common Pleas, which affirmed the Board's decision.
Specifically, the trial court found that the Board's finding that it lacked jurisdiction as to
appellant's claims relating to her fallback rights was not arbitrary, capricious, or otherwise
contrary to law, and did not constitute an abuse of discretion. Further, the trial court
found the Board's order conceming the abolishment of appellant's position was supported
by reliable, probative, and substanfial evidence and is in accordance with law.
{16} This appeal followed and appellant brings the following two assignments of
error for our review:
1. THE LOWER COURT ERRED IN CONCLUDING THAT ITLACKED JURISDICTION TO DETERMINE WHETHER MS.SAXE'S CLASSIFIED POSITION WAS PROPERLYABOLISHED UNDER O.A.C. 123:1-41-08(F) WHEN MS.SAXE WAS TRANSFERRED INTO A CLASSIFIEDPOSITION AFTER IT HAD ALREADY BEEN SLATED FORABOLISHMENT.
2. THE LOWER COURT ERRED IN FINDING THATAPPELLEE PROPERLY ABOLISHED MS. SAXE'SCLASSIFIED POSITION AND THAT APPELLEE'S ACTIONSDID NOT CONSTITUTE BAD FAITH WHEN THERE WASAMPLE EVIDENCE THAT APPELLEE ACTED TO ABOLISH
No. 09AP-1022
{q7}
4
A PERSON AND NOT A POSITION IN VIOLATION OFO.A.C. § 124-7-01.
Our standard of review in this matter is well-established. In an
administrative appeal pursuant to R.C. 119.12, the court of common pleas reviews a
Board's order to determine whether it is supported by reliable, probative, and substantial
evidence and is in accordance with law. R.C. 119.12. In applying this standard, the court
must "give due deference to the administrative resolution of evidentiary conflicts." Univ. of
Cincinnati v. Conrad (1980), 63 Ohio St.2d 108, 111.
{¶8} On further appeal to this court, our standard of review is more limited.
Unlike the court of common pleas, a court of appeals does not determine the weight of
the evidence. Bd. of Edn. of Rossford Exempted Village School Dist v. State Bd. of Edn.
(1992), 63 Ohio St.3d 705, 707. Our role is limited to a determination of whether the court
of common pleas abused its discretion in finding that the Board's order was or was not
supported by reliable, probative, and substantial evidence. Roy v. Ohio State Med. Bd.
(1992), 80 Ohio App.3d 675, 680. The term "abuse of discretion" connotes more than an
error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or
. unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. However, on
the question of whether the Board's order was in accordance with the law, this court's
review is plenary. Univ. Hosp., Univ. of Cincinnati College of Medicine v. State Emp.
Relations Bd. (1992), 63 Ohio St.3d 339, 343.
{19} Reliable, probative, and substantial evidence has been defined as follows:
***"Reliable" evidence is dependable; that is, it can beconfidently trusted. In order to be reliable, there must be areasonable probability that the evidence is true. * * *"Probative" evidence is evidence that tends to prove the issu-
No. 09AP-1022 5
in question; it must be relevant in determining the issue. '"*"SubstantiaP" evidence is evidence with some weight; it musthave importance and value.
Our Place, Inc. v. Ohio Liquor Control Comm. (1992), 63 Ohio St.3d 570, 571 (footnotes
omitted).
{¶i0} In her first assignment of error, appellant contends the trial court erred in
affirming the Board's finding.that it lacked jurisdiction over a portion of appellant's claims.
According to appellant, the Board does have jurisdiction because she is not contesting
her failback rights as much as she is contesting her "transfer•' to a classified position that
was slated for abolishment We disagree.
{¶11} Appellants classified status was revoked, and as required by R.C. 5123.08,
MRDD had to allow appellant to failback into her last classified position, which was the
MHA5, later renumbered as MHA6: This position from 1991, however, no longer existed,
so MRDD created a classified position effective. November 20, 2005, which corresponded
with the revocation of appellants unclassified status. As the trial court noted, however, at
the time appellant exercised her fallback rights into the classified MHA6 position, there
was only an expectancy that the position would be abolished, as DAS did not give
acceptance of MRDD's rationale for the reorganization until December 12, 2005. As
stated by the trial court, if DAS did not accept appellee's justification, "the classified MHA6
position would have continued unabated." (Decision at 8.)
{¶12} The parties agree that, pursuant to R.C. 5123.08, an employee retains the
right to resume the position and status held by him in the classified service immediately
prior to his appointment. Such right is honored by reinstating the employee to his last
held classified position. R.C. 5123.08. Appellant argued to the Board that appellee's
No. 09AP-1022 6
actions in this case were taken in an attempt to deny appellanfi her fallback rights. As
conceded by the parties, issues concerning fallback rights pursuant to R.C. 5123.08 are
beyond the jurisdiction of the Board. It appears what appellant attempts to do at this
juncture, as it did before the trial court, is manipulate the terminology in an effort to try and
provide the Board with jurisdiction. We, like the trial court, however, find that the Board
was correct in its decision that it lacked jurisdiction because the issue raised by appellant
concems the revocation of an unclassified appointment and appellant's request to
exercise her fallback rights after the revocation, both of which are actions taken pursuant
to R.C. 5123.08 and, therefore, beyond the Board's jurisdiction.
{113} Accordingly, we overrule appellant's first assignment of error.
{¶14} In her second assignment of error, appellant contends the trial court erred in
upholding the Board's decision that appellee properly abolished appellant's position and
that appellant's actions did not constitute bad faith. According to appellant, this was
clearly in error because the evidence demonstrates appellee acted to abolish a person
and not a position in violation of Ohio Adm.Code 124-7-01, which provides in relevant
part:
(A) Job abblishments and layoffs stialP be'disaffirmediftheaction was taken in bad faith. The employee must prove theappointing authority's bad faith by a preponderance of theevidence.
(1) The appointing authority shall demonstrate by a pre-ponderance of the evidence that a job abolishment wasundertaken due to a lack of a continuing need for the positionbased on: a reorganization for the efficient operation of theappointing authority; reasons of economy; or a lack of workexpected to last one year or longer.
No. 09AP-1022 7
{115} There are two pieces of evidence to which appellant directs us in support of
her position. The first is a statement taken froni appellee's abolishment rationale, which is
as follows:
This position has been created in order to provide therequired back up position under MRDD's revocation rule5123.08. The employee who was revoked has a back up(ght to this, her former classified position of MHA6.
{¶16} . The second piece of evidence is the following testimony of Brenda
Gerhardstein, MRDD's Manager of Labor Relations:
Q. So it's - there's no dispute that the whole rationale thatwas submitted to D.A.S. was intended to abolish Ms. Saxe'sfallback position. In fact, you requested that her fallbackposition be abolished before you even put her in it?
A. Correct.
(Tr.104.)
{¶17} As argued by appellee, this evidence is taken out of context and renders no
support for appellant's position. When read fully, the layoff rationale states:
State the specific reason(s) why this position is no longerneeded:
This position has been created in order to provide therequired back up position under MI2DD's, revocation rule5123.08. The employee who was revoked has a back upright to this, her former classified. position of MHA6. Thisposition has not been utilized for several years. Thedepartment no longer has an extemal audits seotion. Sincethat time, the Deputy Director 4 who reports to the DeputyDirector of Audits, along with many other duties, hasperformed the duties. There is no need for an external auditssection of this small division. There are only thirteen totalemployees in the Division of Audits. .
No. 09AP-1022
{¶18} Additionally, Ms. Gerhardstein's testimony, including the portion cited by
appellant, does not state that the rationale for abolishment was employee specific.
Instead, the testimony acknowledges the fact the dassified MHA6 was sought to be
abolished, and it was done so even before appellant occupied the position. This
statement does nothing to contradict Ms. Gerhardstein's testimony that "there was a
redundancy in the position and it was a layer of supervision that wasn't necessary." (Tr.
21) Ms. Gerhardstein explained in detail that the job duties simply no longer existed
because the Division of Audits no longer performed external audits.
{¶19} As the trial court stated, it was appellants burden to establish the requested
changes were merely a subterfuge for appellee's desire to terminate appellant. Appellant,
however, has not done so. A review of the evidence plainly reveals no support for
appellant's bad-faith claim, nor does it demonstrate that the rationale for appellee's action
was personal to appellant. Accordingly, we overrule appellant's second assignment of
error.
{¶20} For the foregoing reasons, appeilant's two assignments of error are
overruled, and the judgment of the Franklin County Court of Common Pleas is hereby
affirmed.
Judgment affirmed.
TYACK, P.J., and BROWN, J., concur.
IN THE COURT OF COMMON PLEASFRANKLIN COUNTY, OHIO
HELEN L. SAXE,
Appellant,
vs.
CASE NO.: 09CVF-05-7403
JUDGE: HOGAN
THE OHIO DEPARTMENT OFMENTAL RETARDATION ANDDEVELOPMENTAL DISABILITIES,
Appelllee.
DECISION
DISMISSING THE APPELLANT'S APPEAL
tAENTERED THIS^ DAY OF 2009.
HOGAN, J.
This action comes before the Court upon an appeal commenced by Helen Saxe
(hereinafter referred to as the Appellant). Appellant filed her Brief on August 13, 2009.
The Ohio Department of Mental Retardation and Developmental Disabilities, (hereinafter
referred to as the Appellee) has filed its Brief on August 28, 2009. The Appellant filed
her Reply Brief on September 8, 2009. As set forth below, the Appellant's appeal is
DISMISSED.
STATEMENT OF THE CASE
Appellant has appealed the decision of the State Personnel Board of Review
(hereinafter referred to as the Board). The Board determined that it did not have
jurisdiction to hear the Appellant's assertions concerning her fallback rights.
Furthennore the Board determined that Appellee complied with the procedural
requirements to abolish the Appellant's position. The Board issued its Order on May 2,
2
2009. The Board "ORDERED that the abolishment of Appellant's classified position of
Mental Health Administrator 6 be AFFIRMED". (Emphasis in original)
Appellant now appeals that Order.
STATEMENT OF THE FACTS
The Appellant and the Appellee submitted a set of stipulated facts. Those facts
are reproduced as follows:
1. Effective July 30, 1979, Appellant was hired by Appellee, OhioDepartment of Mental Retardation and Developmental Disabilities
(MR/DD).2. Appellant's last held classified position was a Mental Health
Administrator 5.3. Effective Apri15, 1991, Appellant became an unclassified Mental
Health Administrator 5.4. In January 2005, the Department of Administrative Services(DAS) renumbered the Mental Health Administrator (MHA) positions.Each position number went up by one number. MHA 1 became MHA 2;MHA 2 became MHA 3; MHA 3 became MHA 4; MHA4 became3 MHA
5; and MHA 5 became MHA 6.5. Effective January 2005, due to renumbering, Appellant's title
changed to MHA 6, unclassified.6. 1V1R/DD began the process of reorganization, which caused a
reduction in its workforce.7. Due to the reorganization MR/DD determined it no longer needed
the MHA 6 position.8. Retention Point Roster dated 10/10/205 (Joint Exhibit B) is an
authentic document by MR/DD.9. On November 4, 2005, MR/DD sent its reorganization rational toDAS, which included a layoff rationale for the MHA 6 classified position,
PCN 7162.3.10. On November 4, 2005, Appellant was an unclassified MHA 6,
PCN 7162.3.11. The letter of November 17, 2005, by Kenneth Ritchey, Director ofIvIR/DD, to Appellant confirming revocation of her unclassified status andinforming Appellant of her displacement rights (Joint Exhibit A) isauthentic and the contents therein are stipulated to by the parties.12. Appellant had fallback rights to her last classified position.13. Due to renumbering, the MHA 5 position is now titled as aclassified MHA 6 position. Therefore, Appellant's last classified positionis currently titled MHA 6 as stated in the November 17, 2005, letter.
CASE NO.: 09CVF-05-7403A-12
3
14. Effective November 20, 2005, Appellant's unclassified MHA 6position was revoked and appellant was laced as a MHA 6 classified
employee.15. The letter of December 12, 2005, by DAS to MR/DD authorizing itto begin the reorganization based on its rationale (Joint Exhibit C) is
authentic.16. The letter of December 15, 2005, by MR/DD to Appellantinforming Appellant that her position has been abolished and informingher of her bumping rights (Joint Exhibit D) is authentic.17. On December 21, 2005, Appellant filed a timely appeal to SPBR
concerning her abolishment.18. MR/DD informed Appellant that effective February 18, 2006,Appellant's classified MHA 6 position was abolished.19. Effective February 18, 2006, Appellant bumped into and MHA 4position held by Gale Oliva, PCN 13310.20. Effective July 31, 2006, Appellant will retire and benefit from theEarly Retirement Incentive Program (ERIP) offered by MR/DD.21. The parties stipulated to the authenticity of all personnel actions
generated by IvIR/DD.
The Appellant's appeal faced an initial procedural issue that was addressed by the parties
when they submitted briefs to the Administrative Law Judge (ALJ). The parties felt that
the issues were purely legal and that the matter could be submitted on the above
stipulated facts plus legal briefs.
On March 11, 2008 the ALJ issued her Procedural Order that addressed the legal
issues. The following language was contained within that Order:
This Board does not have jurisdiction to consider the issue of fallbackrights, Asti v. Ohio Dept. of Youth Services (August 27, 2003), SPBRCase No. 03-MIS-01-0001, therefore, I make no fmdings or conclusionsregarding whether or not Appellant was properly allowed to exercise herfallback rights. I note, however, that no information contained in therecord indicates that Appellant attempted to exercise her fallback rightsprior to having her position redesignated as classified; R.C. 124.11(D)provides fallback rights only to those individuals encumbering an
unclassified position.
A-13 CASE NO.: 09CVF-05-7403
4
Having so held, the only issue remaining was whether or not the Appellee had acted
properly in abolishing the Appellant's position. Hence, a hearing was scheduled and
testimony taken. The hearing was conducted on September 25, 2008.
Appellant was present with counsel and the Appellee was also present and
represented. Testimony was elicited and the AJL issued her Report and
Recommendation on February 19, 2009. The Board issued its Order on May 2, 2009
adopting the holdings of the ALJ. The Appellant timely filed her appeal to this Court.
This matter is now ready for review.
STANDARD OF REVIEW
In Pons v. State Medical Board (1993), 66 Ohio.St.3d 619, 1993-Ohio-122, 614
N.E.2d 748, the Supreme Court of Ohio held that a common pleas court reviewing an
agency's decision must determine if the agency's order is supported by reliable, probative,
and substantial evidence, and is in accord with Ohio law. The common pleas court must
give due deference to the administrative agency's resolution of evidentiary conflicts; but
the agency's findings are not conclusive. University of Cincinnati v. Conrad (1980), 63
Ohio St. 2d 108, 407 N.E.2d 12.
R.C. 119.12, the statute governing administrative appeals, specifies that the court
of common pleas may affirm the agency's decision if the court finds "that the order is
supported by reliable, probative, and substantial evidence and is in accordance with law."
This is the standard of review that will be employed by this Court.
This Court's "review of the administrative record is neither a trial de novo nor an
appeal on questions of law only, but a hybrid review in which the court 'must appraise all
the evidence as to the credibility of the witnesses, the probative character of the evidence,
CASE NO.: 09CVF-05-7403A-14
5
and the weight thereof."' Lies v. Ohio Veterinary Med. Bd. (1981), 2 Ohio App.3d 204,
207, quoting Andrews v. Bd ofLiquor Control (1955), 164 Ohio St. 275, 280. The
holdings of the agency are not conclusive, however, this Court must give due deference
to the administrative agency's resolution of evidentiarysonflicts. See, Maurer v. Franklin
Cty. Treasurer, 2008-Ohio-3468, ¶15, citing Univ. of Cincinnati at 111; see also Jones v.
Franklin Cty. Sheriff (1990), 52 Ohio St.3d 40, 43, quoting Graziano v. Amherst
Exempted Village Bd. of Edn. (1987), 32 Ohio St.3d 289, 293 (stating "'due deference
must be accorded to the findings and recommendation of the [ALJ] * * * because it is the
[ALJ] who is best able to observe the demeanor of the witnesses and weigh their
credibility"').
The quality of proof was articulated by the Ohio Supreme Court in Our Place v.
Liquor Control Comm. (1992), 63 Ohio St. 3d 570 as follows:
"Reliable" evidence is dependable; that 'is, it can be
confidently trusted. In order to be reliable, there must be areasonable probability that the evidence is true. (2)"Probative" evidence is evidence that tends to prove theissue in question; it must be relevant in determining the
issue. (3) "Substantial" evidence is evidence with someweight; it must have importance and value. Id. at 571.
Yet this case deals with more than just the facts. Here the Board made a legal finding
that it lacked jurisdiction to address one of the issues raised by the Appellant.
Concerning such questions this Court is mindful of the following:
We recognize that generally a reviewing court will not intrude into areasof administrative discretion for the reason that a rebuttable presumption ofvalidity attaches to actions of administrative agencies. Ohio Academy ofNursing Homes, Inc. v. Barry, supra, 56 Ohio St.3d at 129, 564 N.E.2d686; and Ohio Academy of Nursing Homes, Inc. v. Creasy, supra, 1983
WL 3652, quoting Country Club Home, Inc. v. Harder (1980), 228 Kan.
756, 763 and 771, 620 P.2d 1140. State agencies and their personnel,acting pursuant to a grant or delegation of authority from the legislature,enjoy reasonable latitude with respect to decisions made within their
CASE NO.: 09CVF-05-7403A-15
6
administrative domain. Ohio State Pharrnaceutical Assn. v. Creasy(S.D.Ohio 1984), 587 F.Supp. 698, 704. An agency's interpretation of astatute that governs its actions should be given deference so long as theinterpretation is not irrational, unreasonable, or inconsistent with thestatutory purpose. Ellis Ctr. for Long Term Care v. DeBuono (1998), 175Misc.2d 443, 448, 669 N.Y.S.2d 782. Similar deference should be givenan agency's interpretation of the rules and regulations it is required toadminister, unless that interpretation is unreasonable or conflicts with astatute covering the same subject. State ex rel. Celebrezze v. Natl. Lime &Stone Co. (1994), 68 Ohio St.3d 377, 382, 627 N.8.2d 538.
The agency's interpretation and application of its rules cannot be arbitrary,capricious or otherwise contrary to law, nor can the interpretation andapplication constitute an abuse of discretion. See Ohio Academy ofNursing Homes, Inc. v. Barry, supra, 56 Ohio St.3d at 129, 564 N.E.2d686. The agency must "articulate a satisfactory explanation for its actionincluding a 'rational connection between the facts found and the choicemade.' " Motor Vehicle Manufacturers Assn. of the United States, Inc. v.State Farm Mut. Auto. Ins. Co. (1983), 463 U.S. 29, 43, 103 S.Ct. 2856,77 L.Ed.2d 443, quoting Burlington Truck Lines, Inc. v. United States(1962), 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207.
A judicial review of that explanation must inquire whether the decision isbased upon relevant factors and whether there has been a clear error injudgment on the agency's part. Id. Among the indicia that agency action isarbitrary and capricious are (1) that the agency has relied on factors thelegislature did not intend it to consider; (2) that the agency failed toconsider an important aspect of the problem; (3) that the agency'sexplanation of its decision is contrary to the evidence before it; or (4) thatthe agency's action is implausible to an extent that it cannot be attributedto agency expe'rtise. Id. Morning View Care Center-Fulton v. Ohio Dept.
of Human Serv., 148 Ohio App.3d 518 at 533 - 534, 2002-Ohio-2878
From within the above noted framework, this Court will address the merits of the appeai.
ANALYSIS
The Court has conducted an independent review of the certified record. It has
also reviewed the Briefs and the Reply filed in this matter.
There are two issues. First, was the Board correct when it determined that it
lacked jurisdiction to address Appellant's concems in regard to Appellant's `fallback
rights'? Second, if that holding was correct, is the Board's holding that Appellee
A-16 CASE NO.: 09CVF-05-7403
7
properly abolished the Appellant's position supported by reliable, probative, and
substantial evidence and is in accordance with law?
Appellant asserted that the Board erred when it held that it did not have
jurisdiction to review the fallback claim of the Appellant. The Appellant claimed that the
Board did have jurisdiction to enforce Ohio Admn. Code 123:1-41-8(F). Said section of
the Administrative Code reads as follows:
123:1-41-08 Verification of retention points.(F) Movement irito 2nd out of affected classifications. Once an
appointing authority has submitted the list of retention points andemployees to the director the appointing authority may not hire into ormove employees into or out of affected classifications by means ofpromotions, intra-transfers, voluntary demotions, position control numberchange, lateral or classification changes, or reassignments, except thatinter-transfers out of an agency or implementation of the findings of aposition audit commenced prior to the date of the submission of the list forverification of retention points shall be implemented.
Appellant wanted the Board to view the facts of this case as a question of whether or not
the Appellee used proper abolishment procedures when the Appellant had been
transferred back into the classified civil service. Appellant did not what the question
framed one dealing with the proper fallback procedure.
Appellant asserted that Appellee's decision to move Appellant into a classified
position that had been siated for abolishment violated R.C. § 124.03(A)(i). Appellant
asserted that that issues is within the jurisdiction of the Board and therefore the Board's
decision fmding no jurisdiction was/is not valid. The thrust of Appellant's argument is
that one cannot fallback to a job already requested to be abolished.
Neither party asserted the fact that at the time the Appellant exercised her fallback
rights into the classified NIHA 6 position, there was only an expectancy that the position
would be abolished. Clearly, DAS could have failed to accept Appellee's
CASE NO.: 09CVF-05-7403A-17
8
reasons/justification for the reorganization and the classified MHA 6 position would have
continued unabated. It was not until DAS's issued its letter of December 12, 2005 that
the parties knew that the MHA 6 position was going to be abolished.
Here the Appellant is/was not contesting the abolishment of the position as much
as she is/was contesfing the fact that the Appellee allowed a fallback into the classified
MHA 6 position when it was slated for abolishment A review of the briefs filed during
the administrative appeal clearly show that the Appellant was addressing her fallback
rights. The following language comes from Appellant's August 11, 2006 Brief:
Appellee May Not Create A Classified Position For The Sole Purpose ofPreemptively Abolishing A Classified Position In Order To Deny AnUnclassified Employee Her Right To Fallback Into That ClassifiedPosition And Therefore, Appellant Is Entitled To Her Previous Classified
MHA6 Position
Hence, even the Appellant characterized the issue as one dealing with fallback rights.
Therefore the ALJ and the Board's decision to find a lack of jurisdiction was/is correct.
Frankly, the Appellant did not contest that holding. Appellant just argued now that her
original argument was not about fallback rights.
The Board was correct in its decision that it lacked jurisdiction. Its decision to
view the matter as dealing with fallback rights was not arbitrary, capricious or otherwise
contrary to law, nor did its interpretation constitute an abuse of discretion. The ALJ also
determined that the question; did the Appellee act improperly in allowing the Appellant
to fallback to a position that it knew was being considered for abolishment was likewise a
question that was outside the jurisdiction of the Board.
That left the remaining issue concerning whether or not the Appellee was in
compliance with the procedural requirements concerning Appellant's eventual job
A-18 CASE NO.: 09CVF-05-7403
9
abolishment. The Appellee established the efforts it took to downsize the department
were taken prior to November of 2005. The culmination of those efforts was the packet
submitted to DAS on November 4, 2005.
Appellant, who had the burden, asserted that the change(s) being requested were
just a subterfuge for Appellee's desire to terminate Appellant's position. Appellant had
the burden to establish that the actions of the Appellee were inappropriate and/or
unjustifiably directed at her. The ALJ did not come to that conclusion after hearing the
testimony and reviewing the evidence. The ALJ held that the Appellant did not present
any evidence or testimony to contest Appellee's rationale that supported the
reduction/abolishment of the jobs.
The ALJ based that conclusion, in part, on the testimony that showed that
Appellee was in the process of redistributing work. The testimony established that the
Appellee informed the Appellant of her rights to fallback in a meeting of November 10,
2005. The un-refuted testimony was that the MIIA 6 position held by the Appellant was
redundant. IvIHA 6 was a layer of supervision that was no longer necessary. (Hr. Tr. P.
21, L. 19-21) During the process of revoking Appellant's unclassified NIHA 6 position,
Appellant was informed that the classified 1VIHA 6 position was also slated to be
abolished. The classified MHA 6 position had been created so that the Appellant would
have fallback rights when the MHA 6 unclassified position was revoked. (Iir. Tr. P. 72,
L. 15 - 19)
The ALJ found that all other requirements were followed by the Appellant. The
ALJ held: "Accordingly, I fmd that Appellee complied with the procedural requirements
in effectuating the abolishment of Appellant's classified IvIHA6 position and her
CASE NO.: 09CVF-05-7403A-19
10
subsequent displacement to the classified MHA 4 position she held at the time of her
retirement."
After DAS approved the reduction in positions, Appellant received a notification
letter. (Appellee's Exhibit B) That letter spelled out the Appellant's displacement rights
and Appellant actually did displace a IvII3A 4 position. Appellant remained in that
position until July of 2006 when the Appellant elected to participate in Appellee's early
retirement program. The Appellee did comply with the rules when it abolished
Appellant's MHA 6 position. The ALJ's decision to that effect is supported by reliable,
probative and substantial evidence and is in accordance with law.
DECISION
The State Personnel Board of Review's decision that it lacked jurisdiction as to
the claim of the Appellant was not arbitrary, capricious or otherwise ;contrary to law, nor
did the Board's interpretation constitute an abuse of discretion
The Order of the State Personnel Board of Review concerning the abolishment of
Appellant's position is supported by reliable, probative and substantial evidence and is in
accordance with law. The Appellant's appeal is DISIVIISSED.
Counsel for the Appellee SIIALL prepare and filed the required final entry
as mandated pursuant to Loc.R. 25.
Copies to:
Samuel Lillard, Esq.21 East State Street, 17th FloorColumbus, Ohio 43215
Counsel for the Appellant
CASE NO.: 09CVF-05-7403A-20
11
Richard Cordray, Esq.Attomey GeneralNicole S. Moss, Esq.Assistant Attomey General30 East Broad Street, 23`d FloorColumbus, Ohio 43215-3167
Counsel for the Appellee
A-21 CASE NO.: 09CVF-05-7403
STATE OF OHIOSTATE PERSONNEL BOARD OF REVIEW
Helen L. Saxe,
Appellant
V.
Department of MR/DD, Central Office,
Appellee
Case No. 05-ABL-12-0493
February 19, 2009
Jeannette E. GunnAdministrative Law Judge
REPORT AND RECOMMENDATION
To the Honorable State Personnel Board of Review:
This cause came on to be heard on September 25, 2008. Appellee waspresent at record hearing through its designee, Associate General Counsel MikeWise, and was represented by Assistant Attorneys General Nicole S. Moss andMahjabeen F. Qadir. Appellant was present at record hearing and was representedby Samuel N. Lillard, Attorney at Law.
STATEMENT OF THE CASE
Brenda Gerhardstein testified that she is presently employed by theDepartment of Job & Family Services, but that at the time of Appellant'sabolishment, she held the position of Manager of Labor Relations with Appellee.She indicated that she was employed by Appellee for approximately ten years, andalso served as Personnel Manager in Appellee's Central Office and HumanResources Director for Appellee's Columbus Developmental Center. The witnessnoted that during her employment with Appellee she was involved with several staffreassessment projects, including the assessment that resulted in the abolishment ofAppellant's position in 2005.
Ms. Gerhardstein recalled that as part of the 2005 assessment, sheparticipated in meetings with Personnel staff, legal representatives and laborrelations representatives to identify areas where increased efficiency could berealized. She noted that she was involved in face to face meetings with divisionheads at which staffing needs were discussed and determined. The witness noted
Helen L. SaxeCase No. 05-ABL-1 2-0493Page 2
that ultimately, a recommendation was made to Director Ken Ritchey, who made thedecision to move forward with the abolishments and layoff plan.
She recalled that she and the other individuals conducting the assessmentconsidered areas of redundancies, duplicated duties„ duties that were beingperformed in part or in whole by other state agencies, and obsolete classifications.Ms. Gerhardstein noted that they determined that a reorganization of Appellee'sCentral Office was necessary, that some duties could be picked up by otheragencies, and that Appellee could remove some levels of supervision.
The witness explained that the Office of Labor Relations and the PersonnelDepartment worked togetherto effectuate the job abolishments and any subsequentlayoffs, with Labor Relations coordinating the rationale and executive summariesfrom each Division, preparing the packet submitted to the Department ofAdministrative Services (DAS) and interfacing with the Legal Division, Office ofCollective Bargaining and DAS, where necessary. Ms. Gerhardstein indicated thatthe Personnel Department calculated retention points for affected employees andsubmitted the calculations to DAS with the rationale; they also established timelinesfor union and classified exempt employees, wrote and distributed notice letters andchecked the content of the letters to ensure compliance with applicable statutes.She noted that once a job abolishment packet has been submitted, DAS conducts athorough review of the materials submitted, recalculates retention points andcertifies the calculations as accurate. The witness testified that the retention pointroster was submitted to DAS as part of the job abolishment packet on or about
November 4, 2005.
Ms. Gerhardstein confirmed that Appellee's layoff rationale was approvedand retention points were verified by the Department of Administrative Services inDecember 2005, and permission was granted to proceed with the proposedlayoff/job abolishments (Appellee's Exhibit J). She testified that Appellant based itsrationale for the abolishment of positions on reorganization for efficiency.
The witness indicated that the positions identified for abolishment includedbargaining unit, classified, exempt unclassified, and OCSEA positions. Ms.Gerhardstein stated that it was determined that the layer of supervision provided byAppellant's unclassified position was no longer necessary and Appellant'sunclassified appointment was revoked (Appellee's Exhibits A and I). She noted thatremoval of unclassified positions from a table of organization is accomplished
Helen L. SaxeCase No. 05-ABL-1 2-0493Page 3
through revocation of the appointment, rather than by abolishing the unclassifiedposition.
Ms. Gerhardstein confirmed that a pre-revocation meeting was held forAppellant on November 10, 2005, in order to satisfy the requirements of R.C.5123.08 (Appellant's Exhibit 2). She noted that Appellant had fallback rights whichentitled her to return to the classified position that she held immediately prior toaccepting an unclassified appointment, and confirmed that following the revocationof her unclassified appointment Appellantwas retumed to herfailback position. Thewitness testified that Appellant was informed during the pre-revocation meeting thather classified position was also slated to be abolished.
She confirmed that a position description forAppellant's fallback position wasincluded in the job abolishment packet submitted to DAS on or about November 4,2005. Ms. Gerhardstein further confirmed that Appellant's name appeared on theretention point roster (Appellee's Exhibit D) submitted to DAS, although she did notyet occupy the MHA 6 position reflected in the document. The witness noted thatonly four of the individuals who appeared on the list occupied positions that wereabolished.
Ms. Gerhardstein explained that the classified position last held by Appellantprior to her unclassified appointment was that of a Mental Health Administrator 5(MHA 5) in the Division of Audits, External Audits Section. The witness observedthat because the Mental Health Administrator classification series had undergone arenumbering in January 2005, the position equivalent to Appellant's former MHA 5positionatthetimeofherfallbackwasMentalHealthAdministrator6(MHA6). Shetestified that Appellant was placed in the classified MHA 6 position with an effectivedate of November 20, 2005 (Appellee's Exhibit I).
The witness acknowledged that because the Division of Audits no longerperformed Extemal Audits in 2005, Appellant's former job duties did not exist. Ms.Gerhardstein testified that Appellant continued to perform the duties of herunclassified Community Services position until the time of her layoff.
The witness confirmed that Appellant received a notification letter (Appellee'sExhibit B) regarding the abolishment of her MHA 6 position. She indicated thatAppellant was advised of her displacement rights and elected to displace anotheremployee, eventually displacing into a Mental Health Administrator 4 position in the
Helen L. SaxeCase No. 05-ABL-12-0493Page 4
Division of Community Services (Appellant's Exhibit 8). Ms. Gerhardstein testifiedthat Appellant remained in that position until her retirement in July 2006.
Appellant Helen Saxe testified that she began working for Appellee in 1986as a Mental Health Administrator 4, transferring from, the Bureau of WorkersCompensation. She recalled that prior to the revocation of her unclassifiedappointment she occupied a MHA 6 position in the Division of Community Services.
Appellant confirmed that she participated in a meeting on November 10,2005, regarding Appellee's intent to revoke -her unclassified appointment. Sherecalled that Ms. Gerhardstein made her aware that her fallback position was alsoslated for abolishment. Appellant testified that she understood that her fallbackrights entitled her to return to the last classified position she held before moving toan unclassified position, and if the position did not exist, it would be created for her.She confirmed that she was notified on November 17, 2005, that her unclassifiedappointment had been revoked and that she would be placed into a MHA 6 positionassigned the PCN of 7162.3 (Appellant's Exhibit 4).
Appellant testified that following the abolishment of her classified MHA 6position she displaced into a MHA 4 position. She noted that in July 2006 sheelected to participate in Appellee's early retirement program as a result of theabolishment of her MHA 6 positions and subsequent displacement into a lowerclassified position, a change in her office location and a strained workingrelationship with her immediate supervisor.
FINDINGS OF FACT.
The parties previously entered into stipulated facts as contained in thisBoard's March 11, 2008, Procedural Order. Those facts, reiterated here, are as
follows:
1. Effective July 30, 1979, Appellantwas hired by Appellee, Ohio Department ofMental Retardation and Developmental Disabilities (MR/DD).
2. Appellant's last held classified position was a Mental Health Administrator 5.
3. Effective April 5, 1991, Appellant became an unclassified Mental HealthAdministrator 5.
Helen L. SaxeCase No. 05-ABL-12-0493Page 5
4. In January 2005, the Department of Administrative Services (DAS)renumbered the Mental Health Administrator (MHA) positions. Each positionnumber went up by one number. MHA I became MHA 2; MHA 2 becameMHA 3; MHA 3 became MHA 4; MHA4 became MHA 5; and MHA 5 becameMHA 6.
5. Effective January 2005, due to renumbering, Appellant's title changed toMHA 6, unclassified.
6. MR/DD began the process of reorganization, which caused a reduction in itsworkforce.
7. Due to the reorganization MR/DD determined it no longer needed the MHA 6position.
8. Retention Point Roster dated 10/10/2005 (Joint Exhibit B) is an authenticdocument by MR/DD.
9. On November 4, 2005, MR/DD sent its reorganization rationale to DAS,which included a layoff rationale for the MHA 6 classified position, PCN7162.3.
10. On November 4, 2005, Appellant was an unclassified MHA 6, PCN 7162.3.
11. The letter of November 17, 2005, by Kenneth Ritchey, Director of MRIDD, toAppellant confirming revocation of -her unclassified status and informingAppellant of her displacement rights (Joint Exhibit A) is authentic and thecontents therein are stipulated to by the parties.
12. Appellant had fallback rights to her last classified position.
13. Due to renumbering, the MHA 5 position is now titled as a classified MHA 6position. Therefore, Appellant's last classified position is currently titled MHA6 as stated in the November 17, 2005, letter.
14. Effective November 20, 2005, Appellant's unclassified MHA 6 position wasrevoked and Appellant was placed as a MHA 6 classified employee.
Helen L. SaxeCase No. 05-ABL-1 2-0493Page 6
15. The letter of December 12, 2005, by DAS to MRIDD authorizing it to beginthe reorganization based on its rafionale (Joint Exhibit C) is authentic.
16. The letter of December 15, 2005, by MR/DD to Appellant informing Appellantthat her position has been abolished and informing her of her bumping rights(Joint Exhibit D) is authentic.
17. On December21, 2005, Appellant filed a timely appeal to SPBR concerningher abolishment.
18. MR/DD informed Appellant that effective February 18, 2006, Appellant'sclassified MHA 6 position was abolished.
19. Effective February 18,2006, Appellant bumped into an MHA 4 position heldby Gale Oliva, PCN 13310.
20. Effective July 31, 2006, Appellant will retire and benefit from the EarlyRetirement Incentive Program (ERIP) offered by MR/DD.
21. The parties stipulate to the authenticity of all personnel actions generated by
MR/DD.
In addition to the above-referenced stipulated facts, and based upon thetestimony presented and evidence admitted at record hearing, I make the following
findings of fact:
Appellant received a notification letter (Appellee's Exhibit B) regarding theabolishment of her MHA 6 position. She was advised of her displacement rightsand elected to displace another employee, eventually displacing into a MentalHealth Administrator 4 position in the Division of Community Services (Appellant's
Exhibit 8).
CONCLUSIONS OF LAW
As previously noted in this Board's March 11, 2008, Procedural Order, theState Personnel Board of Review does not have jurisdiction to consider the issue of
fallback rights, Asti v. Ohio Dept. of Youth Services (August 27, 2003), SPBR CaseNo. 03-MIS-01-0001, and, therefore, no findings of fact or conclusions of law are
Helen L. SaxeCase No. 05-ABL-12-0493Page 7
made regarding the proper exercise of Appellant's fallback rights. Both parties wereasked to submit post-hearing briefs addressing the application of OhioAdministrative Code Section 123:1-41-08(F) to the facts of this case. Upon review, Ifind that the application of O.A.C. 123:1-41-08(F) would be properly considered bythis Board only in conjunction with a review of the procedures followed by Appelleein effectuating Appellant's return to her fallback position. That issue is outside thisBoard's scope of authority. Id.
The issue of whether Appellee acted improperly in returning Appellant to aposition that it knew was being considered for abolishment was also addressed inthe March 11, 2008, Procedural Order, with the conclusion made that Appellee didnot act improperly in doing so.
Therefore, this Board may proceed to consider the remaining issue raised byAppellant, which is Appellee's compliance with the procedural requirements of herjob abolishment and layoff. Appellee presented as its general rationale for the 2005job abolishments and layoffs at issue in this matter as reorganization for efficientoperation. Appellant presented no evidence or testimony to contest Appellee'srationale. Similarly, Appellant did not allege that the information submitted byAppellee to DAS in its abolishment/layoff packet was inadequate, that the properorder of layoff was not followed, or that the calculation of Appellant's retentionpoints was faulty.
A review of the layoff notification letter received by Appellant indicates that itwas provided to her in a timely fashion and contained the information required byO.A.C. 123:1-41-10. Appellant was notified of her right to and did, in fact, exerciseher displacement rights, as provided for by O.A.C.123:1-41-11. No assertions weremade by Appellant regarding any other procedural areas in which Appellee wasdeficient. Accordingly, I find that Appellee complied with the proceduralrequirements in effectuating the abolishment of Appellant's classified MHA 6position and her subsequent displacement to the classified MHA4 position she heldat the time of her retirement.
Helen L. SaxeCase No. 05-ABL-12-0493Page 8
Therefore, I respectfully RECOMMEND that the abolishment of Appellee's
