Glasstetter v. Rehab. Servs. Comm. , 2014 Ohio 3014 ( 2014 )

[Cite as Glasstetter v. Rehab. Servs. Comm., 2014-Ohio-3014.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Eydie Glasstetter, :
Appellant-Appellant, :
No. 13AP-932
v. : (C.P.C. No. 12CV-6172)
Rehabilitation Services Commission, : (REGULAR CALENDAR)
Appellee-Appellee. :
D E C I S I O N
Rendered on July 8, 2014
James E. Melle, for appellant.
Michael DeWine, Attorney General, and Joseph Rosenthal,
for appellee.
APPEAL from the Franklin County Court of Common Pleas
O'GRADY, J.
{¶ 1} Appellant-appellant, Eydie Glasstetter, appeals from the judgment of the
Franklin County Court of Common Pleas affirming an order of the State Personnel Board
of Review ("SPBR") in which the SPBR found it lacked jurisdiction to consider
Glasstetter's administrative appeals of actions taken by her former employer, the
Rehabilitation Services Commission ("RSC").1 For the reasons that follow, we affirm.
I. Factual and Procedural Background
A. Glasstetter's State Employment2
1 In 2013, RSC became the Opportunities for Ohioans with disabilities agency. See R.C. 3304.15.
2The facts in Sections I.A. and B. are taken from the Supreme Court of Ohio's decision in State ex rel.
Glasstetter v. Rehab. Servs. Comm., 122 Ohio St. 3d 432, 2009-Ohio-3507.
No. 13AP-932 2
{¶ 2} Glasstetter was employed beginning in 1992 by the state of Ohio in the
unclassified position of Human Resources Administrator 2 at the Department of
Commerce. She transferred to the Bureau of Employment Services, where she was
promoted to Human Resources Administrator 3 ("HRA3"), another unclassified position.
In 1998, RSC posted an opening for a job in the same HRA3 position. The job posting
listed the position with RSC as a classified position. Glasstetter transferred into that
position in October 1998.
{¶ 3} In April 2006, John M. Connelly, the executive director at RSC, told
Glasstetter he wanted to redesignate her position as unclassified. Connelly was the
appointing authority for RSC. Connelly concluded based on the duties performed by
Glasstetter in her HRA3 job, she was in the unclassified service, but had erroneously been
designated as being in the classified service. Glasstetter claimed Connelly offered her the
following choice—either (1) she could remain classified and RSC would hire another
employee with the same classification and duties who would be above her, or (2) she
could agree to the redesignation of the position as unclassified. Although she objected,
Glasstetter ultimately consented to the redesignation.
B. Removal from State Employment and Appeals to SPBR
{¶ 4} A few days after Glasstetter was redesignated as an unclassified employee,
Connelly requested that she be investigated. Glasstetter was subsequently notified she
was the target of a disciplinary investigation. Through her attorney, Glasstetter then
advised Connelly that she was exercising fallback rights to resume her classified position.
Connelly rejected Glasstetter's claim that she was entitled to fallback rights. Later,
Connelly notified Glasstetter that based on the investigative report, he was considering
terminating her from RSC. Effective August 21, 2006, he did terminate her, and
Glasstetter appealed the removal order to the SPBR.
{¶ 5} RSC issued another order in December 2006 specifying that based on the
investigative report, Glasstetter had been removed from her position for cause pursuant
to R.C. 124.34. Glasstetter also appealed that order to the SPBR. In both appeals, SPBR
determined it lacked jurisdiction to review Glasstetter's claim that she had been denied
her fallback rights. SPBR stayed the appeals to allow the parties the opportunity to
resolve the issue through a mandamus action.
No. 13AP-932 3
C. Federal Case
{¶ 6} In February 2007, Glasstetter filed a complaint in the United States District
Court for the Southern District of Ohio, Eastern Division, against RSC, Connelly, and
another individual. Glasstetter v. Rehab. Servs. Comm., S.D.Ohio No. 2:07-cv-125, 2008
WL 886137 (Mar. 28, 2008) ("Glasstetter I"). In March 2008, the federal district court
granted the defendants partial judgment on the pleadings. Id. In 2010, the court granted
them summary judgment on the remainder of Glasstetter's claims. Glasstetter v. Rehab.
Servs. Comm., S.D.Ohio No. 2:07-cv-125, 2010 WL 2465356 (June 14, 2010) ("Glasstetter
II").
D. Mandamus Case
{¶ 7} In January 2008, Glasstetter filed a complaint in this court for a writ of
mandamus to compel RSC and Connelly to honor her fallback rights and reinstate her to
the position of HRA3 in the classified service. State ex rel. Glasstetter v. Connelly, 179
Ohio App. 3d 196, 2008-Ohio-5755, ¶ 1, 25 (10th Dist.) ("Glasstetter III"). We referred the
matter to a magistrate, and in November 2008, we adopted the magistrate's decision and
granted RSC and Connelly summary judgment. Id. at ¶ 2, 15. The Supreme Court of Ohio
affirmed. State ex rel. Glasstetter v. Rehab. Servs. Comm., 122 Ohio St. 3d 432, 2009-
Ohio-3507, ¶ 1 ("Glasstetter IV").
E. SPBR Appeals Post-Mandamus Action
{¶ 8} After the Supreme Court issued Glasstetter IV, the administrative law
judges ("ALJs") assigned to the SPBR appeals issued a procedural order. The ALJs found
it necessary to conduct a hearing to resolve whether Glasstetter was in the classified
service or not at the time of her removal in order to decide whether the SPBR had
jurisdiction over her appeals. The ALJs stated an employee's job duties were the
determinative factor in this analysis and limited the admission of evidence at the hearing
to evidence related to Glasstetter's duties in the two years prior to her removal.
Glasstetter contested this ruling on various grounds and argued she was in the classified
service for reasons unrelated to her duties. After a review of Glasstetter's arguments, the
ALJs found no compelling reason to set aside the procedural order.
{¶ 9} Glasstetter's appeals to the SPBR were consolidated, and one ALJ
conducted the duties hearing, after which Glasstetter proffered information for the
No. 13AP-932 4
record. The ALJ issued a report and recommendation finding Glasstetter held a position
in the unclassified service under R.C. 124.11(A)(9) and recommending dismissal of her
appeals for lack of jurisdiction. Glasstetter filed objections to the ALJ's report and
recommendation, arguing the ALJ's R.C. 124.11(A)(9) finding was flawed. Additionally,
she objected to the limitations on the scope of the hearing and again argued she was in the
classified service for reasons unrelated to her job duties. After a thorough examination of
the entire record, the SPBR adopted the ALJ's recommendation and dismissed
Glasstetter's appeals for lack of jurisdiction.
{¶ 10} Glasstetter filed an appeal in the Franklin County Court of Common Pleas
under R.C. 119.12. The common pleas court affirmed the SPBR's order.
II. Assignments of Error
{¶ 11} Glasstetter appeals and presents this court with four assignments of error
for our review:
1. The trial court abused its discretion in concluding that the
order of the State Personnel Board of Review was supported
by reliable, probative and substantial evidence and was in
accordance with law.
2. The trial court abused its discretion in concluding that
Appellant was hired into a position that was wrongfully listed
as classified or misidentified as classified.
3. The trial court erred in refusing to find that, pursuant to
R.C. 124.271, Appellant was a permanent employee in the
classified service.
4. The trial court erred in finding that the Order of the State
Personnel Board of Review is in accordance with law because:
A. The SPBR Scope of Hearing Order unlawfully restricted the
scope of the hearing to an examination of Appellant's duties
and responsibilities while excluding evidence and legal
argument that Appellant remained a classified employee and
that she was improperly removed from the classified service.
B. The SPBR failed to apply issue preclusion and/or law of the
case doctrine to govern the scope of the Appellant's SPBR
hearing.
No. 13AP-932 5
C. Once an employee attains permanent status pursuant to
R.C. 124.271, she cannot be removed without following the
procedures for such removals under R.C. 124.34.
D. O.A.C. 124-1-02(C) conflicts with R.C. 124.11(A)(9) and
with O.A.C. 123:1-47-01(A)(8) and when all are applied to an
employee of the Rehabilitation Services Commission the
result is an administrative decision which is illogical,
inconsistent, based upon improper inferences and unlawful.
E. O.A.C. 124-1-04(A) and O.A.C. 124-1-04(B) bar any change
in Appellant's classified status and SPBR erred in failing to
apply those rules in this case and the Common Pleas Court
erred in not addressing the issue.
F. Appellant was denied due process of law by the SPBR Scope
of Hearing Order.
{¶ 12} Glasstetter uses headings in the argument section of her appellate brief, but
the headings do not mirror the assigned errors, and many of her arguments seem
applicable to more than one assigned error. Under App.R. 12(A)(2), we may choose to
disregard any assignment of error an appellant fails to separately argue. See State v.
Hubbard, 10th Dist. No. 11AP-945, 2013-Ohio-2735, ¶ 15. However, in the interest of
justice, we have thoroughly reviewed Glasstetter's arguments and attempted to organize
them in relation to the assigned errors.
III. DISCUSSION
A. Standard of Review
{¶ 13} " 'In an administrative appeal pursuant to R.C. 119.12, the [common pleas]
court reviews an order to determine whether it is supported by reliable, probative, and
substantial evidence, and is in accordance with the law.' " Levine v. State Med. Bd. of
Ohio, 10th Dist. No. 10AP-962, 2011-Ohio-3653, ¶ 12, quoting Schechter v. Ohio State
Med. Bd., 10th Dist. No. 04AP-1115, 2005-Ohio-4062, ¶ 55, citing Huffman v. Hair
Surgeon, Inc., 19 Ohio St. 3d 83, 87 (1985). According to the Supreme Court:
(1) "Reliable" evidence is dependable; that is, it can be
confidently trusted. In order to be reliable, there must be a
reasonable probability that the evidence is true.
(2) "Probative" evidence is evidence that tends to prove the
issue in question; it must be relevant in determining the issue.
No. 13AP-932 6
(3) "Substantial" evidence is evidence with some weight; it
must have importance and value.
(Footnotes deleted.) Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio St. 3d 570,
571 (1992).
{¶ 14} The common pleas 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, and the weight thereof." ' " Akron v. Ohio Dept. of Ins., 10th
Dist. No. 13AP-473, 2014-Ohio-96, ¶ 19, quoting Lies v. Ohio Veterinary Med. Bd., 2 Ohio
App.3d 204, 207 (1st Dist.1981), quoting Andrews v. Bd. of Liquor Control, 164 Ohio St.
275, 280 (1955). The court "must give due deference to the administrative determination
of conflicting testimony, including the resolution of credibility conflicts." ATS Inst. of
Technology v. Ohio Bd. of Nursing, 10th Dist. No. 12AP-385, 2012-Ohio-6030, ¶ 29,
citing Crumpler v. State Bd. of Edn., 71 Ohio App. 3d 526, 528 (10th Dist.1991). The court
must defer to the agency's findings of fact unless they are " 'internally inconsistent,
impeached by evidence of a prior inconsistent statement, rest upon improper inferences,
or are otherwise unsupportable.' " Kimbro v. Ohio Dept. of Adm. Servs., 10th Dist. No.
12AP-1053, 2013-Ohio-2519, ¶ 7, quoting Ohio Historical Soc. v. State Emp. Relations
Bd., 66 Ohio St. 3d 466, 471 (1993). However, the common pleas court reviews legal
questions de novo. Akron at ¶ 19, citing Ohio Historical Soc. at 471.
{¶ 15} Our review is more limited than that of the common pleas court. Smith v.
State Med. Bd. of Ohio, 10th Dist. No. 12AP-234, 2012-Ohio-4423, ¶ 13. "In reviewing the
court of common pleas' determination that the board's order was supported by reliable,
probative, and substantial evidence, this court's role is limited to determining whether the
court of common pleas abused its discretion." Id., citing Roy v. Ohio State Med. Bd., 80
Ohio App. 3d 675, 680 (10th Dist.1992). "An abuse of discretion occurs when a decision is
unconscionable, unreasonable, or arbitrary." Weiss v. State Med. Bd. of Ohio, 1oth Dist.
No. 13AP-281, 2013-Ohio-4215, ¶ 15, citing State ex rel. Nese v. State Teachers
Retirement Bd. of Ohio, 136 Ohio St. 3d 103, 2013-Ohio-1777, ¶ 25. On the question of
whether the SPBR's order was in accordance with the law, our review is plenary. Id.,
No. 13AP-932 7
citing Univ. Hosp., Univ. of Cincinnati College of Med. v. State Emp. Relations Bd., 63
Ohio St. 3d 339, 343 (1992).
B. The Civil Service System Generally
{¶ 16} Ohio Constitution, Article XV, Section 10 states:
Appointments and promotions in the civil service of the state,
the several counties, and cities, shall be made according to
merit and fitness, to be ascertained, as far as practicable, by
competitive examinations. Laws shall be passed providing for
the enforcement of this provision.
{¶ 17} The legislature has enforced this constitutional provision by enacting R.C.
Chapter 124. Yarosh v. Becane, 63 Ohio St. 2d 5, 9 (1980). "R.C. 124.11 divides the civil
service into the classified and unclassified service." Id. In relevant part, R.C. 124.11
provides:
The civil service of the state * * * shall be divided into the
unclassified service and the classified service.
(A) The unclassified service shall comprise the following
positions, which shall not be included in the classified
service, and which shall be exempt from all examinations
required by this chapter:
***
(9) The deputies and assistants of state agencies authorized to
act for and on behalf of the agency, or holding a fiduciary or
administrative relation to that agency * * *.
***
(B) The classified service shall comprise all persons in the
employ of the state * * *, not specifically included in the
unclassified service.
{¶ 18} As the Supreme Court has explained:
Positions in the classified service are those for which merit
and fitness can be determined by examination. Employees in
the classified service can only be removed for good cause and
only after the procedures enumerated in R.C. 124.34 and the
rules and regulations thereunder are followed. Positions in the
unclassified service require qualities that the General
No. 13AP-932 8
Assembly has deemed are not determinable by examination.
Employees in the unclassified service do not receive the
protections afforded employees in the classified service.
Yarosh at 9.
{¶ 19} Under R.C. 124.03(A):
The state personnel board of review shall exercise the
following powers and perform the following duties:
(1) Hear appeals, as provided by law, of employees in the
classified state service from final decisions of appointing
authorities or the director of administrative services relative
to reduction in pay or position, job abolishments, layoff,
suspension, discharge, assignment or reassignment to a new
or different position classification, or refusal of the director, or
anybody authorized to perform the director's functions, to
reassign an employee to another classification or to reclassify
the employee's position with or without a job audit
under division (D) of section 124.14 of the Revised Code.
(Emphasis added). Thus, under this provision, the SPBR may hear appeals of employees
in the classified state service under certain circumstances. The SPBR lacks jurisdiction to
hear appeals from unclassified employees. Baker v. Columbiana Cty. Aud., 10th Dist. No.
03AP-552, 2004-Ohio-839, ¶ 11, citing R.C. 124.03.
C. The SPBR's Order was in Accordance with Law
{¶ 20} Under her first assignment of error, Glasstetter generally contends, in part,
that the common pleas court erred when it found the SPBR's order in accordance with
law. Under her fourth assignment of error, Glasstetter specifies the court erred when it
found the SPBR's order in accordance with law because: (1) the scope of the hearing
before the ALJ was too narrow, (2) she was in the classified service as a matter of law by
virtue of former versions of R.C. 124.271 and Ohio Adm.Code 124-1-04, and (3) the
application of Ohio Adm.Code 124-1-02(C) in this matter renders the SPBR's order
unlawful. Under her third assignment of error, Glasstetter argues the court erred in
refusing to find she was a permanent employee in the classified service under former R.C.
124.271. We will address these assigned errors together because they raise similar issues,
and Glasstetter commingled her arguments with regard to them.
No. 13AP-932 9
1. Scope of the Hearing Before the ALJ
{¶ 21} RSC maintains Glasstetter was an employee in the unclassified service
pursuant to R.C. 124.11(A)(9). The current version of Ohio Adm.Code 124-7-04, which
was in effect at the time of the duties hearing, provides:
When an employee has been adversely affected as an
unclassified employee, the burden of proving the unclassified
status of the employee is on the appointing authority. The
board will take evidence of the employee's duties over a
reasonable period of time, which is generally defined as at
least two calendar years immediately prior to the adverse
action, provided that the employee was in an active work
status during that time period.
{¶ 22} This focus on duties is consistent with the Supreme Court's "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 actually delegated to
and performed by the employee." State ex rel. Barley v. Ohio Dept. of Job & Family
Servs., 132 Ohio St. 3d 505, 2012-Ohio-3329, ¶ 22, citing In re Termination of Emp. of
Pratt, 40 Ohio St. 2d 107, 113-14 (1974); State ex rel. Emmons v. Guckenberger, 131 Ohio
St. 466, 469 (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."); and
Yarosh at 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} Nonetheless, Glasstetter argues the scope of the hearing in her case was
unlawfully restricted to an examination of her job duties. She contends the SPBR violated
the law of the case doctrine, the doctrine of issue preclusion, and her due process rights by
barring her from presenting other evidence and arguments at the hearing regarding her
status as an employee in the classified service and improper removal from that service.
a. Background Information
{¶ 24} Before we address the merits of Glasstetter's contentions, it is necessary to
examine the mandamus action in more depth. Again, Glasstetter previously sought a writ
No. 13AP-932 10
of mandamus to compel RSC and Connelly to honor her fallback rights under R.C.
124.11(D) and reinstate her to the position of HRA3 in the classified service.
Glasstetter III at ¶ 1, 25. The applicable version of R.C. 124.11(D) provided:
"An appointing authority whose employees are paid directly
by warrant of the auditor of the 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."
Glasstetter IV at ¶ 18, quoting 2000 Sub.S.B. No. 173, 148 Ohio Laws, Part IV, 9392-9393.
{¶ 25} This court found Glasstetter had no fallback rights under R.C. 124.11(D),
and the Supreme Court agreed. Id. at ¶ 13, 25. The Supreme Court explained that "[i]n
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).' " Id. at ¶ 19, quoting Webster's Third New International Dictionary
105, 1769, and 1915 (2002). Based on these definitions, the Supreme Court found
Glasstetter "was never appointed to a position in the unclassified service." Id. at ¶ 20.
"That is, she was never assigned to a separate position with different job duties. Instead,
throughout her employment with [RSC], Glasstetter remained in the same position—
[HRA3]—with the same job duties. Moreover, she was never separated from that position.
* * * [T]here was thus 'no position for her to "fall back" to, other than the one she already
occupied.' " Id., quoting Glasstetter I. Because Glasstetter had no fallback rights under
R.C. 124.11(D), she was not entitled to a writ ordering her reinstatement to the classified
position of HRA3. Id. at ¶ 25.
{¶ 26} The Supreme Court recognized Glasstetter raised various other claims in the
mandamus action, "including that she could not have been redesignated as an unclassified
No. 13AP-932 11
employee absent her voluntary consent and that [RSC] and [Connelly] did not properly
remove her from her employment with [RSC]." Id. at ¶ 26. The court found she was not
entitled to a writ of mandamus on those claims because she had "an adequate remedy by
her pending appeals to the SPBR and further appeal to the court of common pleas from
any adverse SPBR decisions to raise her claims that she remained a classified employee
and that she was improperly removed from the classified service." Id. at ¶ 28, citing State
ex rel. Baker v. State Personnel Bd. of Review, 85 Ohio St. 3d 640, 644 (1999), and State
ex rel. Weiss v. Indus. Comm., 65 Ohio St. 3d 470, 474 (1992).
b. Law of the Case and Issue Preclusion
{¶ 27} The law of the case doctrine provides "the decision of a reviewing court in a
case remains the law of that case on the legal questions involved for all subsequent
proceedings in the case at both the trial and reviewing levels." Nolan v. Nolan, 11 Ohio
St.3d 1, 3 (1984), citing Gohman v. St. Bernard, 111 Ohio St. 726, 730 (1924), rev'd on
other grounds, New York Life Ins. Co. v. Hosbrook, 130 Ohio St. 101 (1935). The doctrine
is "a rule of practice rather than a binding rule of substantive law and will not be applied
so as to achieve unjust results." Id., citing Gohman at 730-31. "However, the rule is
necessary to ensure consistency of results in a case, to avoid endless litigation by settling
the issues, and to preserve the structure of superior and inferior courts as designed by the
Ohio Constitution." Id., citing State ex rel. Potain, v. Mathews, 59 Ohio St. 2d 29, 32
(1979). In pursuit of these goals, the law of the case doctrine "functions to compel trial
courts to follow the mandates of reviewing courts." Id. Thus, "[a]bsent extraordinary
circumstances, * * * an inferior court has no discretion to disregard the mandate of a
superior court in a prior appeal in the same case." Id. at syllabus, following Potain at 32.
Whether the law of the case doctrine applies in a particular situation constitutes a
question of law. DeAscentisi v. Margello, 10th Dist. No. 08AP-522, 2008-Ohio-6821,
¶ 12.
{¶ 28} "The doctrine of res judicata has two aspects: claim preclusion and issue
preclusion." Arth Brass & Aluminum Castings, Inc. v. Ryan, 10th Dist. No. 07AP-811,
2008-Ohio-1109, ¶ 8, citing Grava v. Parkman Twp., 73 Ohio St. 3d 379, 380 (1995).
"Issue preclusion, also known as collateral estoppel, provides that 'a fact or a point that
was actually and directly at issue in a previous action, and was passed upon and
No. 13AP-932 12
determined by a court of competent jurisdiction, may not be drawn into question in a
subsequent action between the same parties or their privies, whether the cause of action
in the two actions be identical or different.' " Id., quoting Fort Frye Teachers Assn. v.
State Emp. Relations Bd., 81 Ohio St. 3d 392, 395 (1998). "Whether the doctrine of res
judicata applies in a case is a question of law." Id. at ¶ 7.
{¶ 29} Glasstetter interprets the statement in Glasstetter IV that she had "an
adequate remedy by her pending appeals to the SPBR * * * to raise her claims that she
remained a classified employee and that she was improperly removed from the classified
service" as a ruling that in her SPBR appeals, she is entitled to a hearing on any
arguments she wished to make regarding her status and removal. Glasstetter IV at ¶ 28.
She argues issue preclusion and the law of the case doctrine obligate the SPBR to provide
her with such a hearing. However, the scope of Glasstetter's hearing before the SPBR was
not at issue in Glasstetter IV. In Glasstetter IV, the Supreme Court simply recognized the
SPBR was the appropriate tribunal to determine Glasstetter's status at the time of her
removal and, if she was classified, the propriety of her removal. If Glasstetter disagreed
with the SPBR's rulings, as the Supreme Court pointed out, she could file an appeal in the
common pleas court, which she did.
{¶ 30} In any event, Glasstetter was able to preserve her non-duty related
arguments via a pre-hearing motion, a post-hearing proffer, and her objections to the
ALJ's report. The SPBR thoroughly reviewed the record before adopting the ALJ's
recommendation. Thus, the SPBR did consider and reject Glasstetter's non-duty related
arguments about her status and removal even though the SPBR did not make specific
findings with regard to them. As we explain below, the specific non-duty related
arguments identified in her appeal to this court lack merit. These arguments did not
warrant a hearing.
c. Due Process
{¶ 31} Glasstetter also makes a due process challenge to the scope of the hearing.
"Both the Fourteenth Amendment to the United States Constitution and Section 16,
Article I of the Ohio Constitution require that administrative proceedings comport with
due process." Richmond v. Ohio Bd. of Nursing, 10th Dist. No. 12AP-328, 2013-Ohio-110,
¶ 10, citing Mathews v. Eldridge, 424 U.S. 319 (1976); Doyle v. Ohio Bur. of Motor
No. 13AP-932 13
Vehicles, 51 Ohio St. 3d 46 (1990). "Pursuant to due process, governmental agencies must
provide constitutionally adequate procedures before depriving individuals of their
protected liberty or property interests." Natoli v. Ohio State Dental Bd., 177 Ohio App. 3d
645, 2008-Ohio-4068, ¶ 18 (10th Dist.), citing Mathews at 332, and Cleveland Bd. of
Edn. v. Loudermill, 470 U.S. 532, 541 (1985).
{¶ 32} A " 'fundamental requirement of due process is the opportunity to be heard
"at a meaningful time and in a meaningful manner." ' " Natoli at ¶ 18, quoting Mathews
at 333, quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965). "At its core, due process
insists upon fundamental fairness, and the requirement to conduct a hearing implies that
a fair hearing must occur." Id., citing Lassiter v. Dept. of Social Servs., 452 U.S. 18, 24
(1981), and Clayman v. State Med. Bd., 133 Ohio App. 3d 122, 127 (10th Dist.1999). But,
above all, " ' "[d]ue process is flexible and calls for such procedural protections as the
particular situation demands." ' " Id., quoting Mathews at 334, quoting Morrissey v.
Brewer, 408 U.S. 471, 481 (1972). The question of whether the due process requirements
have been satisfied presents a legal question. See Slorp v. Dept. of Adm. Servs., 10th Dist.
No. 97APE08-1136 (Apr. 30, 1998).
{¶ 33} Glasstetter suggests any limitations on the scope of the hearing before the
ALJ violated her due process rights. However, the duties hearing was consistent with
longstanding precedent that the "true test" of whether a public employee is in the
classified or unclassified service "requires an examination of the duties actually delegated
to and performed by the employee." Barley at ¶ 22. The scope of the hearing was
appropriate to the issue at hand, i.e., whether Glasstetter was in fact classified at the time
of her removal and able to invoke the jurisdiction of the SPBR. Again, as we explain
below, the specific non-duty related arguments Glasstetter identified in her appeal to this
court are meritless and did not warrant a hearing.
{¶ 34} Additionally, Glasstetter claims she was "unlawfully prevented" from
"making a record on the constitutional issues raised by her prehearing motion."
(Appellant's Brief, 20.) She complains that without this record, she cannot argue the
merits of her "constitutional issues" but, instead, can only argue the SPBR "erred in failing
to allow her to make a record and hear her claims." (Appellant's Brief, 20.) Though
unclear, it appears Glasstetter is arguing that she wanted to make constitutional
No. 13AP-932 14
arguments about her status as a classified employee and removal at a hearing, but could
not. Instead of elaborating on what her "constitutional issues" are, Glasstetter leaves it to
this court to glean them from the record. It is not this court's duty to construct appellant's
arguments for her. Hubbard at ¶ 34, quoting Camp v. Star Leasing Co., 10th Dist. No.
11AP-977, 2012-Ohio-3650, ¶ 67.
2. Glasstetter's Non-Duty Based Arguments Regarding her
Employment Status
a. Issue Preclusion
{¶ 35} Glasstetter directs our attention to the Supreme Court's statement in the
mandamus action that she was "never appointed to a position in the unclassified service."
Glasstetter IV at ¶ 20. She claims the court implicitly found she was always in the
classified service, and issue preclusion prevents RSC from challenging that finding.
However, Glasstetter takes the court's statement out of context. The court did not
determine whether her HRA3 position was in fact classified or unclassified. Rather, the
court determined R.C. 124.11(D) did not apply to her. The court reasoned the change in
Glasstetter's designation from classified to unclassified could not be an "appointment"
within the meaning of that statute because her duties never changed at RSC. As the
federal district court aptly observed, because Glasstetter's duties did not change, she was
"either legally in the classified service both before and after her status re-designation, or
legally in the unclassified service both before and after the status re-designation."
Glasstetter I. The Supreme Court had no occasion to decide which of these alternatives
was correct.
b. R.C. 124.271
{¶ 36} Glasstetter contends she became an employee in the classified service by
virtue of the version of R.C. 124.271 in effect throughout her employment with RSC, which
provided:
Any employee in the classified service of the state * * * who is
appointed provisionally to fill a vacancy and who remains in
provisional status in the same classification or classification
series for a period of two years of continuous service, during
which period no competitive examination is held, becomes a
No. 13AP-932 15
permanent appointee in the classified service at the
conclusion of such two-year period.
1995 Sub.S.B. No. 99.3
{¶ 37} Glasstetter suggests she became an "employee in the classified service of the
state" for purposes of R.C. 124.271 when she transferred to RSC. She points to the fact that
the HRA3 position was posted as classified. She argues that when she accepted the
position, Department of Administrative Services' ("DAS") records identified her as a
provisional employee, and provisional employees are in the classified service. Therefore,
after two years of continuous service without an examination being held, she became a
permanent appointee in the classified service under R.C. 124.271. She contends DAS
records confirm the changes to her status in 1998 and 2000, and she highlights the fact
that no one challenged her designation until 2006.
{¶ 38} Under Glasstetter's reasoning, if DAS records mistakenly identify an
unclassified employee as a provisional employee and no one catches the mistake for two
years, the employee becomes a permanent classified employee. The employee can only be
removed under R.C. 124.34. Glasstetter contends Richley v. Youngstown Civil Serv.
Comm., 9 Ohio St. 3d 15 (1984), Moore v. Agin, 12 Ohio St. 3d 173 (1984), and Yarosh
support this interpretation.
{¶ 39} However, " '[i]t is a well-settled rule of statutory interpretation that
statutory provisions be construed together and the Revised Code be read as an
interrelated body of law.' " Summerville v. Forest Park, 128 Ohio St. 3d 221, 2010-Ohio-
6280, ¶ 24, quoting State v. Moaning, 76 Ohio St. 3d 126, 128 (1996). We will not assume
the legislature explicitly defined unclassified and classified service positions in R.C. 124.11
only to implicitly create a conflicting definition in R.C. 124.271 that would enable
unclassified employees to obtain the benefits of the classified service for no reason other
than mistake. Such an interpretation is illogical and not compelled by the Supreme
Court's decisions in Richley, Moore, or Yarosh.
3 The current version of R.C. 124.271 provides: "Any employee in the classified service of the state * * * who
is appointed to a position under section 124.30 of the Revised Code, and either demonstrates merit and
fitness for the position by successfully completing the probationary period for the position or remains in the
position for a period of six months of continuous service, whichever period is longer, shall become a
permanent appointee in the classified service at the conclusion of that period."
No. 13AP-932 16
{¶ 40} In Richley, the Supreme Court addressed whether R.C. 124.271 violated the
Ohio Constitution's mandate that merit and fitness for civil service positions be
ascertained, so far as practicable, by competitive examinations. The court found
"[c]ontinuous performance in a position for two years may constitute an acceptable
substitute for competitive testing to determine the constitutional requirement of 'merit
and fitness.' " Richley at paragraph one of the syllabus. Therefore, "R.C. 124.271, which
grants permanent and classified status by virtue of two years' continuous service, does not
violate Section 10, Article XV of the Ohio Constitution." Id. at paragraph two of the
syllabus. The court did not address whether a person could qualify as an employee in the
classified service for purposes of R.C. 124.271 regardless of her status under R.C. 124.11.
Thus, Richley does not support Glasstetter's argument.
{¶ 41} Moore stemmed from events that occurred because of a law enforcement
leadership crisis in the city of Zanesville. To install new leadership quickly, the city
petitioned its civil service commission to suspend the competitive examination
requirements of R.C. Chapter 124 for the selection of a permanent police chief. Moore at
173. The commission granted the suspension and designated Earl Moore, an applicant
from outside the police department, for appointment as chief in 1975, and he served in
that capacity until his discharge in 1982. Id. The legality of his appointment was not
challenged before then. Id. Moore sought a declaratory judgment that his appointment
was legal and he was protected by the classified provisions of the Civil Service Act. Id. at
173-74. The Supreme Court found the appointment lawful, and, by virtue of his seven
years of service, Moore became a member of the classified civil service under R.C. 124.271
and could appeal his removal. Id. at 175, fn. 1. However, in Moore, the parties at least
implicitly agreed the police chief position was classified; they just disagreed about
whether Moore was lawfully appointed to that position. Thus, the court had no occasion
to address the relationship between R.C. 124.271 and 124.11.
{¶ 42} In Yarosh, a sheriff terminated several deputy sheriffs hired by his
predecessor. The sheriff viewed the deputies as unclassified. Yarosh at 9. Evidently, the
sheriff's predecessor shared that belief because he did not appoint the deputies based on
examination results. Id. When the deputies contested their termination, the sheriff
argued the SPBR lacked jurisdiction to hear the appeals because the deputies were
No. 13AP-932 17
deemed unclassified by their appointing authorities. Id. The Supreme Court disagreed,
finding an appointing authority could not deny an employee the right of review by the
SPBR merely by declaring them to be unclassified. Id. at 10. The Supreme Court held
SPBR "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." Id. at paragraph two of the syllabus. The
court found the deputies were in the classified service as defined in R.C. 124.11(B). Id. at
13. Then, the court considered the import of the fact that the deputies were not appointed
based on competitive examination results and held:
A deputy who is not appointed to a position in the classified
service due to the neglect of a sheriff to initiate the proper
appointment procedure pursuant to R.C. 124.27 is, at the very
least, a provisional employee in the classified service at the
time of his appointment, and after two years of such service
attains permanent status pursuant to R.C. 124.271. Once a
deputy attains permanent status, a sheriff cannot remove him
without following the procedures for such removals under
R.C. 124.34.
Id. at paragraph five of the syllabus.
{¶ 43} Glasstetter contends paragraph two of the syllabus in Yarosh does not apply
to her because there is "no uncertainty" that she was placed in a classified position at RSC
as evidenced by DAS records. (Appellant's Brief, 29.) Thus, she argues paragraph five of
the syllabus in Yarosh proves she became a permanent classified employee under R.C.
124.271. We disagree. As Yarosh suggests, labels are not dispositive of classified service
status. Instead, the determining factor of status is where the employee's position falls
under R.C. 124.11. Thus, the fact that DAS records indicated Glasstetter was classified
prior to 2006 is not dispositive of her status. If DAS records were dispositive, Glasstetter
would not have received a duties hearing at all because those records indicate she was
unclassified at the time of her removal in August 2006.
{¶ 44} Though unclear, Glasstetter appears to claim her DAS records, at the very
least, create a presumption she was in the permanent classified service as of 2000. She
argues RSC did not present evidence that the HRA3 job posting and her DAS records
No. 13AP-932 18
incorrectly designated her position as classified. Thus, the SPBR had to find her classified
regardless of what her duties were in the two years before her removal.
{¶ 45} However, in the mandamus action the Supreme Court found "throughout
her employment with [RSC], Glasstetter remained in the same position—[HRA3]—with
the same job duties." Glasstetter IV at ¶ 20. Glasstetter does not refute this finding and
has argued issue preclusion prevents it from being questioned in the present matter.
Glasstetter is correct. The issue of whether her duties at RSC changed was a fact or point
actually and directly at issue in the mandamus action involving herself and RSC and was
passed upon by a court of competent jurisdiction. See Arth Brass at ¶ 8, quoting Fort
Frye at 395. Thus, if Glasstetter's duties in the two years before her removal rendered her
unclassified under R.C. 124.11, it is implicit she was always in the unclassified service at
RSC and the HRA3 job posting and DAS records were incorrect.
{¶ 46} The SPBR found based on her duties in the two-year look back period,
Glasstetter was in the unclassified service under R.C. 124.11(A)(9). As we explain below,
the trial court did not abuse its discretion in finding the SPBR's order was supported by
reliable, probative, and substantial evidence. Therefore, Glasstetter was always in the
unclassified service at RSC, and former R.C. 124.271 never applied to her.
c. Former Ohio Adm.Code 124-1-04
{¶ 47} Next, Glasstetter claims any change to her classified status was barred by a
former version of Ohio Adm.Code 124-1-04, which provided:
(A) An appointing authority is estopped to raise the illegal
appointment of an employee to defeat the tenure rights which
would have been due that employee had he been lawfully
appointed.
(B) After two years of service in a position in the classified
service, an employee may become automatically certified
under the provisions of section 124.271 of the Revised Code,
notwithstanding the impropriety of his appointment.
"Appointment" means "placement of an employee in a position." Ohio Adm.Code 124-1-
02(E). "Position" means "a group of duties intended to be performed by an employee."
Ohio Adm.Code 124-1-02(S).
No. 13AP-932 19
{¶ 48} Ohio Adm.Code 124-1-04(A) does not apply because RSC does not contend
Glasstetter was illegally placed in the HRA3 position and should not have been
performing the duties of that position. Instead, RSC maintains the appropriate label for
Glasstetter's duties is unclassified service, not classified service. Ohio Adm.Code 124-1-
04(B) does not apply because Glasstetter never served in a position in the classified
service at RSC, i.e., her duties rendered her service unclassified.
d. Other Arguments
{¶ 49} Glasstetter claims if we affirm the SPBR's order, the distinction between
classified and unclassified employees would become meaningless. An employer could
change an employee's designation at any time, and the employee could not appeal the
change to the SPBR. Glasstetter complains nothing in R.C. 124.34 "authorizes an
appointing authority to remove a classified employee by simply saying she is * * * an
unclassified employee as occurred in this case." (Appellant's Brief, 30.)
{¶ 50} Glasstetter is correct we previously found the SPBR cannot hear an appeal
arising solely from a change in an employee's status from classified to unclassified without
any other changes in the employee's position. Kittrells v. Ohio Lottery Comm., 10th Dist.
No. 93APE08-1176 (Mar. 22, 1994). The employee must demonstrate a resulting adverse
employment action to trigger SPBR's jurisdiction under R.C. 124.03. Id. However, if the
employee suffers an adverse action after a change in the employee's service designation,
the SPBR's ability to conduct a duties hearing like the one in this case protects the
employee from misconduct by the employer. If the employee was in the classified service
under R.C. 124.11, she is entitled to the protections of R.C. Chapter 124 regardless of the
label assigned to her. In contrast, if the employee, like Glasstetter, was in the unclassified
service under R.C. 124.11, the employee was never entitled to those protections and lost
nothing because of the change in designation.
{¶ 51} Additionally, Glasstetter argues if we affirm the SPBR's order, individuals
who apply for jobs posted as "classified" can never trust that designation and rely on it to
make important life decisions, even after eight years of service. While we are sympathetic
to Glasstetter's argument, we are bound by the precedent set forth in Barley that title or
position classification used by appointing authority is not dispositive on the issue of
No. 13AP-932 20
whether a position is classified or unclassified. Thus, her argument does not change the
fact that she was in the unclassified service under R.C. 124.11.
3. Interpretation of R.C. 124.11(A)(9)
{¶ 52} The ALJ and the SPBR found Glasstetter was in the unclassified service
under R.C. 124.11(A)(9), which provides that the unclassified service includes the
"deputies and assistants of state agencies authorized to act for and on behalf of the
agency, or holding a fiduciary or administrative relation to that agency." (Emphasis
added). The ALJ recognized the Revised Code does not define a fiduciary or administrate
relation and referenced the following definitions in Ohio Adm.Code 124-1-02:
(C) "Administrative relationship" generally means a relation-
ship where an employee has substantial authority to initiate
discretionary action and/or in which the appointing authority
must rely on the employee's personal judgment and
leadership abilities. The average employee would not possess
such qualities or be delegated such discretionary authority.
Whether one position occupies an administrative relationship
to another is a question of fact to be determined by the board.
***
(I) "Fiduciary relationship" generally means a relationship
where the appointing authority reposes a special confidence
and trust in the integrity and fidelity of an employee to
perform duties which could not be delegated to the average
employee with knowledge of the proper procedures. These
qualifications are over and above the technical competency
requirements to perform the duties of the position. Whether
one position occupies a fiduciary relationship to another is a
question of fact to be determined by the board.
(Emphasis added).
{¶ 53} The ALJ also referenced Ohio Adm.Code 123:1-47-01(A)(8) and (27) which,
in part, defines an "assistant" and "deputy" as an employee with a fiduciary or
administrative relationship "to the agency." Ultimately, the ALJ found Glasstetter was a
deputy or assistant with an administrative relation to RSC based on the agency's reliance
on her personal judgment and leadership abilities.
No. 13AP-932 21
{¶ 54} Glasstetter complains R.C. 124.11(A)(9) and Ohio Adm.Code 123:1-47-
01(A)(8) call for an evaluation of the employee's relationship to the agency, i.e., the seven-
member RSC. See former R.C. 3304.12 ("The governor, with the advice and consent of
the senate, shall appoint a rehabilitation services commission consisting of seven
members."). In contrast, Ohio Adm.Code 124-1-02(C) evaluates the relationship between
the employee and the appointing authority, i.e., Connelly. See former R.C. 3304.14 ("The
rehabilitation services commission shall appoint an administrator to serve at the pleasure
of the commission * * * [and] may delegate to the administrator the authority to appoint,
remove, and discipline * * * such other professional, administrative, and clerical staff
members as are necessary to carry out the functions and duties of the commission.).
Given the different relationships evaluated by these provisions, Glasstetter maintains the
ALJ's reliance on them "produced a result that is illogical, internally inconsistent and
[which] rests upon improper inferences," rendering the SPBR's order adopting the ALJ's
recommendation unlawful. (Appellant's Brief, 34.)
{¶ 55} However, the ALJ ultimately evaluated the relationship between RSC and
Glasstetter and analyzed whether RSC relied on her personal judgment and leadership
abilities. Glasstetter does not contend the ALJ was incorrect that if RSC relied on those
qualities, an administrative relation exists for purposes of R.C. 124.11(A)(9). Thus, her
complaint about the ALJ's citation to Ohio Adm.Code 124-2-02(C) elevates form above
substance, and we reject it.4
4. Summary
{¶ 56} For the foregoing reasons, we find the SPBR's order was in accordance with
law. We overrule the third and fourth assignments of error and the first assignment of
error to the extent it challenges the legality of the SPBR's order.
4 We note in her reply brief, Glasstetter suggests for the first time that reliable, probative, and substantial
evidence did not support the SPBR's order because evidence showed she directly reported to RSC's assistant
executive director, not Connelly or RSC, so RSC could not have directly relied on her personal judgment and
leadership abilities. However, we will not address an argument raised for the first time in a reply brief. See
Huffer v. Brown, 10th Dist. No. 12AP-1086, 2013-Ohio-4384, ¶ 10.
No. 13AP-932 22
D. The Trial Court did not Abuse its Discretion
{¶ 57} In the remainder of her first assignment of error and in her second
assignment of error, Glasstetter contends the trial court abused its discretion in finding
the SPBR's order supported by reliable, probative, and substantial evidence.
{¶ 58} The ALJ made the following conclusions pertinent to our analysis:
Testimony presented at record hearing indicated that
[Glasstetter] had the authority to contractually bind the
agency to contracts under $50,000, and had some discretion
to define the terms of such contracts; I find that duties of this
nature required [RSC] to rely on [Glasstetter's] personal
judgment, see, Rarick v. Bd. of Cty. Commrs. (1980), 63 Ohio
St.2d 34, and are characteristic of an employee who holds an
administrative relation to an agency. [Glasstetter] also had
oversight of the Human Resources Department and its
employees. She was responsible for assigning work, evaluating
employee performance, and ensuring that assignments were
completely in a timely and appropriate manner. Performance
of such duties would require [Glasstetter] to carry out agency
policy in the supervision of her subordinates; I find that
responsibilities of this nature necessitated [RSC's] reliance on
[Glasstetter's] personal judgment and leadership qualities,
and are characteristic of an administrative relationship.
Yarosh v. Becane (1980), 63 Ohio St. 2d 5.
[Glasstetter] had oversight of her departmental budget and
monitored expenditures to ensure compliance. She was a
member of participated in the discussions of a number of
higher management level committees, relaying information
and advising committee members regarding Human
Resources related issues. I find that these duties required
[Glasstetter] to exercise her personal judgment.
The duties performed by [Glasstetter] during the two-year
time period examined at record hearing while not
demonstrating a reliance by the agency on her personal
integrity or fidelity sufficient to constitute a fiduciary
relationship, did require the agency to rely on her personal
judgment and leadership skills. Accordingly, I find [RSC] has
demonstrated by a preponderance of the evidence that
[Glasstetter] had an administrative relation to the agency.
(R. 17, Record of Proceedings.)
No. 13AP-932 23
{¶ 59} Glasstetter contends once the ALJ found RSC's reliance on her personal
integrity or fidelity was insufficient to constitute a fiduciary relationship, it was
contradictory for the ALJ to find RSC relied on her personal judgment and leadership
skills. She argues an employer must rely on the integrity or fidelity of an employee who is
permitted to exercise personal judgment in the execution of her job duties. However, as
noted above, the ALJ's report utilized the definition of fiduciary relationship in Ohio
Adm.Code 124-1-02(I), which discusses the placement of "special confidence and trust in
the integrity and fidelity of an employee to perform duties which could not be delegated to
the average employee with knowledge of the proper procedures." In his conclusions of
law, the ALJ simply used a shorthand way of saying RSC's relationship with Glasstetter
did not fit this definition. We find no contradiction in a finding that RSC relied on
Glasstetter's personal judgment and leadership abilities but that such reliance did not rise
to the level discussed in Ohio Adm.Code 124-1-02(I). Not every decision an employee
makes requires an employer to place special confidence and trust in her.
{¶ 60} Next, Glasstetter complains the ALJ and SPBR erred in finding her
authority to bind RSC to contracts under $50,000 and limited discretion to define the
terms of such contracts constituted evidence she had an administrative relation to RSC.
She argues the Supreme Court's decision in Rarick v. Bd. of Cty. Commrs., 63 Ohio St. 2d
34, 37 (1980), compels the opposite conclusion.5 In Rarick, the Supreme Court analyzed
whether the Raricks, Geauga County's former building service superintendent and
assistant superintendent, were in a fiduciary or administrative relationship with the
county commissioners such that the Raricks were in the unclassified service. The court
stated that "[d]uties which are closely supervised by the appointing authority do not place
a position in a fiduciary or administrative relationship with the authority; no special
confidence and trust in an employee's abilities and integrity is involved." Rarick at 37.
The court went on the find that the Raricks' ability to contract out for snow removal
services, even to themselves, did not place them in either a fiduciary or administrative
relationship with the commissioners. Id. However, the Raricks still had two duties that
5 Glasstetter also complains the common pleas court misread Rarick as providing support for the limited
scope of the hearing before the ALJ. However, regardless of whether Rarick supports the proposition for
which the common pleas court cited it, we already found no error in the limited scope of the hearing.
No. 13AP-932 24
placed them in the unclassified service: "the duty to purchase supplies through blanket
purchase orders and the duty to supervise and arrange for the work of the building staff."
Id. at 38.
{¶ 61} Glasstetter argues from Rarick, it is apparent an employee does not have an
administrative relation to an agency solely because the employee has authority to make a
contract on the agency's behalf, even with herself. She argues blanket purchase orders
like the Raricks greatly differ from the types of contracts she could make at RSC.
However, the snow removal contracts in Rarick were subject to approval by the
commissioners. Id. at 34. In contrast, with blanket purchases orders, the Raricks could
purchase supplies whenever they chose and did not have to account for their expenditures
until after the money was spent, requiring trust in their honesty and judgment. Id. at 38-
39. In the absence of evidence the contracts Glasstetter had authority to make were
subject to approval, those contracts are more akin to the blanket purchase orders in
Rarick than the snow removal contracts. Glasstetter's ability to enter into and, to some
extent, write the terms of contracts on behalf of RSC supports the finding she had an
administrative relation to the RSC.
{¶ 62} Additionally, as the common pleas court noted, the ALJ and the SPBR did
not solely rely on Glasstetter's contracting authority to conclude she had an
administrative relation to RSC. Instead, they relied on additional evidence on matters
such as her oversight of the Human Resources Department and participation in higher
management level committees. Glasstetter does not specifically challenge any of these
findings. She generally argues her work at RSC was closely supervised, so she could not
have an administrative relation to RSC. However, the only evidence she points to of this
close supervision is her own testimony, which the SPBR was free to disbelieve. See ATS
Inst. of Technology at ¶ 29, citing Crumpler at 528 (explaining the deference the common
pleas court must give an administrative determination of credibility).
{¶ 63} Glasstetter also argues the common pleas court erred in stating she was
hired into a position that was wrongfully listed as classified. Even though the ALJ and the
SPBR did not explicitly make this finding, as we explained above, such a finding is implicit
and correct. Therefore, we find no error in the court's statement.
No. 13AP-932 25
{¶ 64} For the foregoing reasons, we conclude the common pleas court did not
abuse its discretion in determining the SPBR's order was supported by reliable, probative,
and substantial evidence. Accordingly, we overrule the remainder of the first assignment
of error, and we overrule the second assignment of error.
IV. Conclusion
{¶ 65} Having overruled each of the assignments of error, we affirm the judgment
of the Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT and DORRIAN, JJ., concur.