State Ex Rel. Barley v. Ohio Department of Job & Family Services , 132 Ohio St. 3d 505 ( 2012 )

[Cite as State ex rel. Barley v. Ohio Dept. of Job & Family Servs., 132 Ohio St.3d 505, 2012-
Ohio-3329.]
THE STATE EX REL. BARLEY, APPELLANT, v. OHIO DEPARTMENT OF JOB AND
FAMILY SERVICES ET AL., APPELLEES.
[Cite as State ex rel. Barley v. Ohio Dept. of Job & Family Servs.,
132 Ohio St.3d 505, 2012-Ohio-3329.]
Court of appeals’ judgment denying writ of mandamus reversed—R.C.
124.11(D)—Fallback rights—Former employee entitled to be reinstated to
previous classified position.
(No. 2011-1724—Submitted June 5, 2012—Decided July 25, 2012.)
APPEAL from the Court of Appeals for Franklin County,
No. 10AP-186, 2011-Ohio-4205.
__________________
Per Curiam.
{¶ 1} This is an appeal from a judgment denying appellant, Chris Barley,
a writ of mandamus to compel appellees, the Ohio Department of Job and Family
Services (“ODJFS”) and its director, to reinstate Barley to his previous classified
position of human-services hearing manager with ODJFS. Because the court of
appeals erred in denying the requested extraordinary relief, we reverse the
judgment and remand the cause for further proceedings.
Facts
{¶ 2} Barley was hired by ODJFS in 1989 as a production-control
technician in the classified civil service. In 1990, he was promoted to the
classified position of production scheduler. In 1993, Barley graduated from law
school, and ODJFS promoted him to the classified position of hearing officer. In
1995, Barley was promoted to the classified position of senior staff attorney.
{¶ 3} In 1998, ODJFS promoted Barley to the classified position of
human-services program administrator, which had a working title of bureau chief
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of state hearings. The previous bureau chief had also served in the classified civil
service. Initially, the bureau of state hearings had only six employees, and the
hearing supervisors and officers did not report to Barley but were instead
supervised by the district directors of ODJFS’s five regional offices. After a
reorganization, however, the supervisors and officers were transferred to the
bureau of state hearings and were under Barley’s supervision.
{¶ 4} In that same year, ODJFS created a series of positions under the
title human-services-hearings series, and the series was reviewed and approved by
the Ohio Department of Administrative Services (“DAS”). Both ODJFS and
DAS determined that all the positions in this new series were classified positions.
In 1999, ODJFS laterally transferred Barley to the classified position of human-
services hearing manager. In 2001, after serving his probationary period in the
position, Barley became a certified human-services hearing manager, a classified
position.
{¶ 5} In December 2004, following a reorganization in the ODJFS
Office of Legal Services, Barley’s supervisor, then ODJFS chief legal counsel
Robert L. Mullinax, assigned him the additional duties of managing the
department’s administrative-appeal process, which had previously been managed
by the office of legal services. Before these additional duties were assigned to
Barley, he did not supervise the administrative-appeal hearing examiners and he
was not the director’s designee for issuing administrative-appeal decisions.
Barley was not given any promotion or increased compensation for assuming
these new responsibilities in addition to his existing duties, and he was not
informed that the assumption of these duties would move his human-services
hearing-manager position from the classified service to the unclassified service.
{¶ 6} In 2005, two anonymous letters sent to ODJFS alleged various
violations of work policies by Barley, including misuse of a work computer and
improper use of leave. An investigation of the alleged violations disproved most
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of them, but substantiated two allegations concerning his use of leave and work
time spent on personal matters. The investigator determined that Barley had
misused personal leave by using it to cover time off needed in relation to a drunk-
driving arrest. His supervisor had approved his leave request, even though he
knew what Barley was using it for, but neither he nor Barley knew that such a use
violated state policy. The investigator also determined that Barley had used state
time to work on a coworker’s divorce.
{¶ 7} In December 2005, ODJFS suspended Barley for ten work days for
the violations of the code of conduct. Before that time, Barley had never been
disciplined as an ODJFS employee. Barley appealed the suspension to the State
Personnel Board of Review (“SPBR”). Upon his return from the suspension,
ODJFS scheduled a meeting with him. Before that meeting, Barley sent an e-mail
to his supervisor in which he advised him that he would consider taking a
different position in the department. On March 6, 2006, after Barley refused to
sign a last-chance agreement or, in the alternative, resign, ODJFS notified him
that he was an unclassified employee and that it was removing him from his
position. According to Barley’s supervisor, Barley’s position was not placed in
the unclassified civil service until his removal. Barley appealed his removal to
the SPBR.
{¶ 8} In Barley’s appeal from his suspension, an SPBR administrative
law judge (“ALJ”) denied his request to present evidence necessary to determine
the applicability of R.C. 124.11(D), which grants state employees who move from
classified positions to unclassified positions the right to resume the classified
position held before the appointment to the unclassified position (“fallback
rights”), holding that it was irrelevant to the appeal. After conducting a hearing,
the ALJ recommended that the SPBR find that Barley was an unclassified
employee when he was suspended and dismiss his appeal for lack of jurisdiction.
See R.C. 124.03 (the SPBR has jurisdiction to hear appeals brought by classified
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employees). The ALJ limited the evidence to a consideration of Barley’s job
duties for a period of 15 months before his suspension:
Because case law has determined that an employee’s actual
job duties are the determinative factor of whether an employee is
classified or unclassified, the testimony and evidence presented at
record hearing was confined to information furthering the evidence
of [Barley’s] job duties over a period of approximately fifteen
months prior to his suspension, September 2004 to December
2005.
{¶ 9} In concluding that Barley was an unclassified employee at the time
of his suspension, the ALJ emphasized the duties assigned to Barley in 2004, i.e.,
managing the administrative-appeal process and issuing final administrative-
appeal decisions as the director’s designee. The SPBR adopted the ALJ’s
recommendation and dismissed Barley’s appeal for lack of jurisdiction. The
Franklin County Court of Common Pleas affirmed the SPBR’s dismissal of
Barley’s appeal from his suspension, and on further appeal, the Franklin County
Court of Appeals affirmed the judgment of the common pleas court upholding the
dismissal by rejecting Barley’s new argument that he suffered a due-process
violation when he was placed in the unclassified service without any notice:
Both SPBR and the court of common pleas have
determined that [Barley] was correctly placed in the unclassified
service due to the nature and scope of his authority and job duties.
That conclusion is no longer challenged in this appeal. If [Barley]
is correctly placed in the unclassified service, [he] has not been
deprived of a protected property interest that, under the due
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process analysis * * *, would trigger the right to a pre-deprivation
hearing. He can claim no deprivation from loss of his previous
designation as classified, which did not reflect his actual status and
could not control SPBR’s review of his right to appeal. * * *
SPBR correctly found that it lacked jurisdiction and dismissed this
appeal by an unclassified employee.
Barley v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 09AP-386, 2009-
Ohio-5019, ¶ 14.
{¶ 10} An SPBR ALJ also recommended that Barley’s appeal from his
removal be dismissed based on the prior finding in his appeal from his suspension
that he was an unclassified employee. The SPBR adopted the ALJ’s
recommendation and dismissed the appeal for lack of jurisdiction. The Franklin
County Court of Common Pleas affirmed the SPBR’s dismissal of Barley’s
appeal from his removal.
{¶ 11} In a separate administrative proceeding, the Unemployment
Compensation Review Commission determined that Barley had been discharged
from ODJFS without just cause, and it reversed the agency’s denial of Barley’s
application for unemployment-compensation benefits. In concluding that ODJFS
had discharged him without just cause, the board of review noted that there was
little proof provided and that there were “no further problems with [Barley’s]
actions at the workplace after he served his suspension.” An investigation by the
Office of Disciplinary Counsel resulted in its determination that there was
insufficient credible evidence to suggest that Barley had engaged in ethical
misconduct.
{¶ 12} In March 2008, Barley requested that ODJFS recognize his
fallback rights under R.C. 124.11(D). Barley claimed that he had an unqualified
right to be placed in his prior human-services hearing-manager position “minus
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the duties [he] accepted in December 2004, with back pay and benefits.” ODJFS
rejected his request.
{¶ 13} In February 2010, following the resolution of his administrative
appeals from the suspension and removal, Barley filed a complaint in the Franklin
County Court of Appeals for a writ of mandamus to compel ODJFS and its
director to reinstate him to his fallback classified position of bureau chief of state
hearings, i.e., the human-services hearing-manager position, without the
additional responsibilities of managing the administrative-appeal process, and to
pay him all back pay and lost benefits from the time he was unjustly removed
from that position. Appellees filed an answer, and the parties submitted evidence
and briefs.
{¶ 14} In August 2011, the court of appeals denied the writ. The court of
appeals determined that although Barley was in an unclassified position when he
was suspended and removed from his employment with ODJFS, he had never
been “appointed” to the unclassified position and thus had no right under R.C.
124.11(D) to be reinstated to his previous classified position.
{¶ 15} This cause is now before the court on Barley’s appeal as of right.
Legal Analysis
Mandamus Requirements—Lack of Adequate Remedy
{¶ 16} To be entitled to the requested extraordinary relief in mandamus,
Barley had to establish a clear legal right to the requested relief, a corresponding
clear legal duty on the part of ODJFS and its director to provide it, and the lack of
an adequate remedy in the ordinary course of the law. State ex rel. Waters v.
Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6.
{¶ 17} Barley claims that the court of appeals erred in denying the writ
because R.C. 124.11(D) conferred a right upon him to be reinstated to his
classified position of human-services hearing manager, without the additional
duties assigned to him in 2004 that changed the position from the classified to the
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unclassified civil service. Because he had no right to appeal ODJFS’s denial of
his statutory fallback rights, he lacks an adequate remedy in the ordinary course of
law, and the dispositive issues are whether he established a clear legal right to the
classified position and a corresponding clear legal duty on the part of the
department and its director to reinstate him to that position. See R.C. 124.03 and
124.11(D); State ex rel. Glasstetter v. Rehab. Servs. Comm., 122 Ohio St.3d 432,
2009-Ohio-3507, 912 N.E.2d 89, ¶ 16.
Clear Legal Right and Clear Legal Duty:
R.C. 124.11(D) Appointment
{¶ 18} The version of R.C. 124.11(D) that was in effect when the new
duties concerning management of the department’s administrative-appeals
process were assigned to Barley in 2004 provided:
An appointing authority whose employees are paid directly
by warrant of the auditor of state may appoint a person who holds
a certified position in the classified service within the appointing
authority's agency to a position in the unclassified service within
that agency. A person appointed pursuant to this division to a
position in the unclassified service shall retain the right to resume
the position and status held by the person in the classified service
immediately prior to the person's appointment to the position in the
unclassified service, regardless of the number of positions the
person held in the unclassified service. Reinstatement to a position
in the classified service shall be to a position substantially equal to
that position in the classified service held previously, as certified
by the director of administrative services.
2000 Sub.S.B. No. 173, 148 Ohio Laws, Part IV, 9388, 9392-9393.
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{¶ 19} The court of appeals determined that ODJFS never “appointed”
Barley to an unclassified position when it assigned him additional duties that
changed his position from the classified service to the unclassified service.
{¶ 20} “In interpreting R.C. 124.11(D), our paramount concern is
legislative intent.” State ex rel. Asti v. Ohio Dept. of Youth Servs., 107 Ohio St.3d
262, 2005-Ohio-6432, 838 N.E.2d 658, ¶ 22. To discern legislative intent, we
“read words and phrases in context and construe them in accordance with rules of
grammar and common usage.” State ex rel. Russell v. Thornton, 111 Ohio St.3d
409, 2006-Ohio-5858, 856 N.E.2d 966, ¶ 11. “In common usage, ‘appoint’ means
‘to assign, designate, or set apart by authority,’ ‘position’ is defined as ‘the group
of tasks and responsibilities making up the duties of an employee,’ and
‘reinstatement’ means ‘the action of reinstating (as in a post or position formerly
held but relinquished).’ ” Glasstetter, 122 Ohio St.3d 432, 2009-Ohio-3507, 912
N.E.2d 89, ¶ 19, quoting Webster’s Third New International Dictionary 105,
1769, and 1915 (2002).
{¶ 21} Moreover, “ ‘[w]ords * * * that have acquired a technical or
particular meaning, whether by legislative definition or otherwise, shall be
construed accordingly.’ ” Hoffman v. State Med. Bd. of Ohio, 113 Ohio St.3d
376, 2007-Ohio-2201, 865 N.E.2d 1259, ¶ 26, quoting R.C. 1.42. Ohio
Adm.Code 124-1-02(E) defines “appointment” as the “placement of an employee
in a position,” and Ohio Adm.Code 124-1-02(S) defines “position” as “a group of
duties intended to be performed by an employee.”
{¶ 22} From these definitions, it is evident that a position’s status as
classified or unclassified cannot be determined without considering the duties
associated with the position. This is consistent with our longstanding precedent
that the job title or position classification used by the appointing authority is not
dispositive on the issue whether a public employee is in the classified or
unclassified service and that the true test requires an examination of the duties
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actually delegated to and performed by the employee. In re Termination of Emp.
of Pratt, 40 Ohio St.2d 107, 113-114, 321 N.E.2d 603 (1974); State ex rel.
Emmons v. Lutz, 131 Ohio St. 466, 469, 3 N.E.2d 502 (1936) (“However, it must
be clear that a mere title is not at all conclusive. The true test is the duty actually
delegated to and performed by an employee”); Yarosh v. Becane, 63 Ohio St.2d 5,
406 N.E.2d 1355 (1980), paragraph two of the syllabus (“The State Personnel
Board of Review has jurisdiction over appeals from removals of public employees
if it determines that such employees are in the classified service, regardless of
how they have been designated by their appointing authorities”).
{¶ 23} Therefore, when ODJFS assigned additional duties to Barley that
changed his position from the classified service to the unclassified service, it
appointed him to the unclassified position, regardless of whether his position title
remained the same. ODJFS placed its employee, Barley, in an unclassified
position by assigning him duties that took the group of duties to be performed by
him outside the classified service. This finding is consistent with the SPBR’s and
the court of common pleas’ determination in Barley’s administrative appeal from
his suspension that he had been placed by ODJFS in the unclassified service. See
Barley, 10th Dist. No. 09AP-386, 2009-Ohio-5019, ¶ 14; see also Glasstetter, 122
Ohio St.3d 432, 2009-Ohio-3507, 912 N.E.2d 89, ¶ 20, where we affirmed a court
of appeals’ rejection of a state employee’s mandamus claim based on R.C.
124.11(D) because she “was never appointed to a position in the unclassified
service. That is, she was never assigned to a separate position with different job
duties. Instead, throughout her employment * * *, [she] remained in the same
position * * * with the same job duties.” (Emphases added.)
{¶ 24} Barley’s isolated statement from a March 2008 letter to ODJFS
reasserting his fallback rights that he “was never appointed to the unclassified
civil service, and was always considered and treated as a classified employee”
does not warrant a different conclusion because at the time the letter was written,
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his administrative appeals in which he had been arguing that he was improperly
suspended and removed from his classified position remained pending. In that
limited context, as the court of appeals acknowledged, Barley’s statement was not
a legally binding admission for purposes of his subsequent mandamus claim.
{¶ 25} Moreover, a contrary conclusion upholding the court of appeals’
judgment would permit state employers desiring to remove classified employees
without the just cause required by R.C. 124.34 to change the employees’ job
classification to the unclassified service by adding new duties that are inconsistent
with classified service, which would then both deprive the employees of the
ability to contest any removal from state employment and simultaneously strip
them of their R.C. 124.11(D) statutory right to fall back to their prior classified
positions. In effect, state employers could decide which employees would have
fallback rights and which employees would not. The General Assembly could not
have intended such an unreasonable result. State ex rel. Striker v. Cline, 130 Ohio
St.3d 214, 2011-Ohio-5350, 957 N.E.2d 19, ¶ 25 (courts construe statutes and
rules to avoid unreasonable or absurd results); State ex rel. Carna v. Teays Valley
Local School Dist. Bd. of Edn., 131 Ohio St.3d 478, 2012-Ohio-1484, 967 N.E.2d
193, ¶ 19, quoting State ex rel. Saltsman v. Burton, 154 Ohio St. 262, 268, 95
N.E.2d 377 (1950) (“ ‘Statutes must be construed, if possible, to operate sensibly
and not to accomplish foolish results’ ”).
{¶ 26} Finally, this result is consistent with our duty to liberally construe
the R.C. 124.11(D) fallback provision.
R.C. 124.11(D) is a remedial provision that protects state
employees when they move from classified positions, from which
they may be terminated only for just cause, to unclassified,
terminable-at-will positions. It provides appointing agencies * * *
with a broader pool of experienced applicants for upper level,
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unclassified positions by offering civil-service protection to those
classified employees appointed to unclassified positions.
Asti, 107 Ohio St.3d 262, 2005-Ohio-6432, 838 N.E.2d 658, ¶ 31; see also R.C.
1.11 (“Remedial laws * * * shall be liberally construed in order to promote their
object”). Adopting the court of appeals’ construction of this provision would
permit employers to move employees in the classified service to the unclassified
service by adding duties without the employees’ consent and would prevent the
employees from challenging any subsequent removal from that position or from
invoking the right to fall back to the classified-service position they held before
the additional duties were forced upon them.
{¶ 27} Therefore, the court of appeals erred in determining that Barley
could not establish his entitlement to the R.C. 124.11(D) right to fall back to his
previous classified position as human-services hearing manager because he was
not appointed to an unclassified position when he was assigned the additional
duties that took his position out of the classified civil service. This result is
dictated by the plain language of the applicable statutory and rule provisions, the
manifest intent of the General Assembly in enacting R.C. 124.11(D), and our duty
to liberally construe this important statutory right.
Clear Legal Right and Clear Legal Duty:
R.C. 124.11(D) Applicability
{¶ 28} ODJFS argues that even if Barley can establish that the department
appointed him to an unclassified position, he is still not entitled to the requested
extraordinary relief in mandamus, because he was appointed to the unclassified
position in 1998, which, ODJFS argues, was before the law was amended to
provide classified employees with fallback rights.
{¶ 29} The court of appeals held that because Barley was never
“appointed” to an unclassified position, “any arguments and objections relating to
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whether [he] held a classified position from 1998-2004 are moot.” Yet the court
of appeals went on to adopt its magistrate’s resolution of the remaining issues.
The magistrate had determined that res judicata precluded Barley’s claim that his
position had not changed to unclassified until he was assigned new duties by his
boss in December 2004 because he either raised or could have raised that
contention in his previous administrative appeals.
{¶ 30} It is true that “[r]es judicata, whether claim preclusion or issue
preclusion, applies to quasi-judicial administrative proceedings.” State ex rel.
Schachter v. Ohio Pub. Emps. Retirement Bd., 121 Ohio St.3d 526, 2009-Ohio-
1704, 905 N.E.2d 1210, ¶ 29; State ex rel. Varnau v. Wenninger, 128 Ohio St.3d
361, 2011-Ohio-759, 944 N.E.2d 663, ¶ 11. But the court of appeals erred in
concluding that Barley could have raised the issue of whether he was a classified
employee in 1998 in his previous administrative appeals. Those appeals were
limited to the issue whether Barley was a classified employee when he was
suspended and ultimately removed from his employment with ODJFS in 2005 and
2006. In fact, when Barley attempted to raise the issue of his fallback rights
under R.C. 124.11(D) in his first administrative appeal, his attempt was rejected
and the SPBR expressly limited the appeal to a consideration of his job duties
from September 2004 to December 2005. Barley’s classified status in 1998 was
irrelevant to his administrative appeals. Therefore, the court of appeals erred in
concluding that res judicata barred Barley’s contention that he was entitled to
fallback rights.
{¶ 31} Moreover, the evidence establishes that Barley was a classified
employee until the addition of duties related to managing the administrative-
appeal process in December 2004. His position was consistently designated by
both ODJFS and DAS as being in the classified service, and the SPBR, in its
decision in Barley’s administrative appeal from his suspension, relied heavily on
the duties assigned to him in December 2004 to determine that he was an
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unclassified employee at the time he was suspended in December 2005. The
affidavit evidence presented in the court of appeals—including the affidavit of
Barley’s boss, then ODJFS chief legal counsel—supported this conclusion.
{¶ 32} Therefore, the court of appeals further erred insofar as it
determined that Barley was not entitled to fallback rights because he was not a
classified employee when these rights became effective.
Conclusion
{¶ 33} Based on the foregoing, Barley has established that he is entitled to
a writ of mandamus to compel ODJFS and its director to reinstate him to his
previous classified position of human-services hearing manager or a substantially
equal position, without the duties assigned to him in December 2004 that moved
his position into the unclassified service. Because the court of appeals erred in
holding otherwise, we reverse the judgment and remand the cause to that court to
grant the writ and to determine Barley’s remaining claims, e.g., back pay and lost
benefits. Asti, 107 Ohio St.3d 262, 2005-Ohio-6432, 838 N.E.2d 658, ¶ 35.
Judgment reversed
and cause remanded.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL, CUPP,
and MCGEE BROWN, JJ., concur.
LANZINGER, J., dissents.
__________________
LANZINGER, J., dissenting.
{¶ 34} I respectfully dissent and would adopt the reasoning of the court of
appeals in denying the writ of mandamus. The majority now holds that a
classified public employee who is given additional duties so that his position is
recharacterized as unclassified has fallback rights under R.C. 124.11(D). The
redesignation of status is not an appointment to a position as contemplated by the
fallback statute.
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{¶ 35} The court of appeals determined that Barley had never been
“appointed” to the unclassified position and thus had no right under R.C.
124.11(D) to be reinstated to his previous classified position. R.C. 124.11 was
amended effective March 30, 1999, to include section (D), which provides:
An appointing authority * * * may appoint a person who
holds a certified position in the classified service within the
appointing authority’s agency to a position in the unclassified
service within that agency. A person appointed pursuant to this
division to a position in the unclassified service shall retain the
right to resume the position and status held by the person in the
classified service immediately prior to the person’s appointment to
the position in the unclassified service, regardless of the number of
positions the person held in the unclassified service.
(Emphases added.)
{¶ 36} Thus the statute speaks of an appointment to a position. Barley
stated in his March 13, 2008 letter when he reasserted his fallback rights:
I am writing to re-assert my fallback rights, as provided by
Ohio Rev. Code 124.11(D). Although I was never appointed to the
unclassified civil service, and was always considered and treated as
a classified employee, I was removed as an unclassified employee
during the Taft administration on March 6, 2006.
(Emphasis added.)
{¶ 37} Barley himself recognizes that he was never appointed to an
unclassified position. I agree with the court of appeals’ determination that ODJFS
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never “appointed” Barley to an unclassified position when it assigned him
additional duties that caused his position to be characterized as unclassified. This
view comports with our precedent construing R.C. 124.11: State ex rel.
Glasstetter v. Rehab. Servs. Comm., 122 Ohio St.3d 432, 2009-Ohio-3507, 912
N.E.2d 89 (R.C. 124.11(D) did not apply, because employee was never appointed
to an unclassified position, although she was redesignated as an unclassified
employee); State ex rel. Asti v. Ohio Dept. of Youth Servs., 107 Ohio St.3d 262,
2005-Ohio-6432, 838 N.E.2d 658 (employee was appointed to several
unclassified positions and retained fallback rights).
{¶ 38} I would affirm the determination of the court of appeals that Barley
could not establish his entitlement to the R.C. 124.11(D) right to fall back to his
previous classified position as human-services hearing manager because he was
not appointed to an unclassified position when he was assigned the additional
duties that took his position out of the classified civil service.
__________________
Walter J. Gerhardstein Jr., for appellant.
Michael DeWine, Attorney General, Joseph N. Rosenthal, Senior
Assistant Attorney General, and Brandon R. Gibbs, Assistant Attorney General,
for appellee the Ohio Department of Job and Family Services.
______________________
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