State ex rel. Pruce v. Ohio Pub. Emp. Retirement Sys. Bd. , 2018 Ohio 713 ( 2018 )

[Cite as State ex rel. Pruce v. Ohio Pub. Emp. Retirement Sys. Bd., 2018-Ohio-713.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. Deborah Pruce, :
Relator, :
v. : No. 16AP-782
Ohio Public Employees Retirement : (REGULAR CALENDAR)
System Board
and :
Geauga County Department of
Job and Family Services, :
Respondents. :
D E C I S I O N
Rendered on February 27, 2018
James M. Gillette, for relator.
Michael DeWine, Attorney General, John J. Danish and
Mary Therese J. Bridge, for respondent Ohio Public
Employees Retirement System Board.
James R. Flaiz, Geauga County Prosecuting Attorney, and
Susan T. Wieland, for respondent Geauga County
Department of Job and Family Services.
IN MANDAMUS
TYACK, J.
{¶ 1} Deborah Pruce filed this action in mandamus seeking a writ to compel the
Ohio Public Employees Retirement System ("OPERS") to consider her to be a public
employee from April 15, 2002 through January 31, 2009.
{¶ 2} In accord with Loc.R. 13(M) of the Tenth District Court of Appeals, the case
was referred to a magistrate to conduct appropriate proceedings. The parties provided
No. 16AP-782 2
the pertinent evidence to the magistrate and filed briefs. The magistrate then issued a
magistrate's decision, appended hereto, which contains detailed findings of fact and
conclusions of law. The magistrate's decision includes a recommendation that we deny
the request for a writ.
{¶ 3} No party has filed objections to the magistrate's decision.
{¶ 4} Since no party has filed objections, we are to first analyze whether the
magistrate's decision displays an error of law or fact on the face of the decision.
{¶ 5} The magistrate's decision runs some 26 pages. It carefully analyzes the
distinction in the Ohio Administrative Code between a public employee and an
independent contractor. The magistrate correctly determined that OPERS did not abuse
its discretion when it found that Deborah Pruce was an independent contractor during the
pertinent time.
{¶ 6} No error of law or fact is present on the face of the magistrate's decision.
We, therefore, adopt the findings of fact and conclusions of law in the magistrate's
decision and deny the request for a writ of mandamus.
Writ of mandamus denied.
KLATT and SADLER, JJ., concur.
No. 16AP-782 3
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. Deborah Pruce, :
Relator, :
v. : No. 16AP-782
Ohio Public Employees Retirement : (REGULAR CALENDAR)
System Board
and :
Geauga County Department of
Job and Family Services, :
Respondents. :
MAGISTRATE'S DECISION
Rendered on October 25, 2017
James M. Gillette, for relator.
Michael DeWine, Attorney General, John J. Danish, and
Mary Therese J. Bridge, for respondent Ohio Public
Employees Retirement System Board.
James R. Flaiz, Geauga County Prosecuting Attorney, and
Susan T. Wieland, for respondent Geauga County
Department of Job and Family Services.
IN MANDAMUS
{¶ 7} In this original action, relator, Deborah Pruce, requests a writ of mandamus
ordering respondent, Ohio Public Employees Retirement System Board ("OPERS" or
"board"), to vacate its December 16, 2015 decision that adopted the March 31, 2015 report
of its hearing examiner that determined that relator was not a public employee of the
No. 16AP-782 4
Geauga County Department of Job and Family Services ("JFS") from April 15, 2002
through January 31, 2009 and, thus, she is not entitled to OPERS membership during
that period. The hearing examiner determined that relator was an "independent
contractor" as defined by former Ohio Adm.Code 145-5-15(A)(2) and currently by Ohio
Adm.Code 145-1-42(A)(2). As an "independent contractor" relator is excluded from
OPERS membership for that time period.
Findings of Fact:
{¶ 8} 1. On April 8, 2013, relator completed an OPERS form captioned "NOTICE
OF RIGHT AND REQUEST FOR: DETERMINATION FOR OPERS MEMBERSHIP."
The form is designated by OPERS as form "PEDREQ." The purpose of the form is
explained at the top of the first page:
You have been identified as an individual who provided
personal services to a public employer prior to Jan. 7, 2013.
You were classified as an independent contractor or another
classification, other than a public employee, and no
contributions were made to OPERS on your behalf for these
services. Ohio law requires that the public employer provide
you with this notice of your right to a request a
determination as to whether you should have been classified
as a public employee for these services.
In order to request that OPERS determine whether you
should have been classified as a public employee, please
complete the information below and return this form to
OPERS at * * *. Ohio law provides that a request for
determination must be made within one year from Jan. 7,
2013. No requests for determinations for personal
services provided prior to Jan. 7, 2013 will be
accepted after Jan. 7, 2014, unless you are able to
demonstrate through medical records to the Board's
satisfaction that you were physically or mentally
unable to do so at the time the one-year period
ended.
(Emphasis sic.)
{¶ 9} On the second page, the form states: "I am requesting that OPERS issue a
determination as to my eligibility for OPERS membership for services I provided to the
following public employer."
No. 16AP-782 5
{¶ 10} In the space provided, relator named "Geauga County Job & Family
Services" as her public employer. She further indicated that her job title with JFS was
"Service Coordinator for Help Me Grow Program."
{¶ 11} 2. By letter dated May 1, 2013, OPERS informed relator:
We have recently received Notice of Right and Request for
Determination for OPERS Membership, Form PEDREQ,
requesting a review of membership determination for service
as an independent contractor with the Geauga County Job
and Family Services as Service Coordinator for Help Me
Grow for the period 2/22/2002 to 1/30/2009. Before we can
determine whether you are eligible for OPERS service for
this employment we must have additional information from
you and the employer.
Please complete the enclosed Independent
Contractor/Employee Determination for Worker, form
PED-1EE relative to this service. * * * We have requested that
the employer complete a separate form.
(Emphasis sic.)
{¶ 12} 3. On November 25, 2013, relator signed an OPERS form captioned
"Independent Contractor/Employee Determination for Worker." At the top of the first
page of this four-page form, the form explains:
This form is used by OPERS to obtain information to
determine whether a worker is a public employee for
purposes of state retirement * * *.
***
Complete this form in its entirety, sign and date it, and
submit it directly to OPERS at the above address. Any
supporting documentation should accompany this form. The
employer will complete and submit an Independent
Contractor/Employee Determination for Employer (PED-
1ER) that asks for similar information.
{¶ 13} 4. By letter dated February 6, 2014 from "Employer Compliance Specialist"
Rosetta M. Freeman, OPERS issued its staff determination pursuant to Ohio Adm.Code
145-1-10. The one-page letter explains the determination that relator was not a public
employee for the period at issue:
No. 16AP-782 6
I am writing in response to your request for a determination
on whether you were a public employee for your service as
Help Me Grow Service Coordinator for the period of
4/15/2002-2/1/2009.
Based upon my review of the information submitted by both
parties, I find that you are not a public employee for the
services provided during the time period stated above.
Please be advised Ohio Admin.Code 145-5-15 and 145-1-
42(A)(2) defines an independent contractor as an individual
who is party to a bilateral agreement which may be a written
document, ordinance, or resolution that defines the
compensation, rights, obligations, benefits and
responsibilities of both parties; is paid a fee, retainer or other
payment by contractual arrangement for particular services;
is not eligible for Workers' Compensation, is not eligible for
unemployment compensation; may not be eligible for
employee fringe benefits such as vacation or sick leave; does
not appear on a public payroll; is required to provide his own
supplies and equipment, and provide and pay his assistants
or replacements if necessary; is not controlled or supervised
by personnel of the public employer as to the manner of
work; and should receive an Internal Revenue Service Form
1099 for income tax reporting purposes.
According to the information submitted, your position was
established with an annual contract by which both parties
were in agreement. You were paid a fee per hour with a limit
set not to exceed. You submitted invoices for compensation
and received a 1099 for income tax purposes. You were
allowed to subcontract your work after getting approval from
the employer. Additionally, you did not receive fringe
benefits such as sick, vacation or insurance, nor were you
covered by the employer's Workers' Compensation or
Unemployment Compensation, all which were addressed in
your contract.
Based on this information and the above definition we have
determined the working relationship to be not that of a
public employee and; therefore, is excluded from
contributing Ohio PERS membership per Section 145.012 of
the Ohio Revised Code.
Any party may appeal this staff determination within thirty
(30) days from the date of this letter. A written request for
No. 16AP-782 7
appeal, accompanied by additional information supporting
the appeal, must be submitted to Julie Emch Becker, OPERS
General Counsel.
{¶ 14} 5. By letter dated March 1, 2014, relator administratively appealed the
February 6, 2014 staff determination pursuant to Ohio Adm.Code 145-1-10.
{¶ 15} 6. By letter dated April 30, 2014, OPERS, through its General Counsel,
Julie Emch Becker, issued its senior staff determination pursuant to Ohio Adm.Code 145-
1-10(C). General Counsel's three-page letter explains:
This letter is in response to your March 1, 2014 appeal of the
staff determination issued on February 6, 2014 finding that
you were not an employee of the Geauga County Department
of Job and Family Services ("JFS") as a Help Me Grow
Service Coordinator from April 15, 2002 through January 31,
2009.
Based upon my review of this matter, I find that you were
providing services as an independent contractor pursuant to
a personal service contract and, therefore, you are not
eligible for OPERS membership for this service.
Background
You first began providing services in April 2002. During the
period in question, both parties acknowledge that you
provided services pursuant to annual written contracts and
that no OPERS contributions were remitted to OPERS. On
February 2, 2009, you were hired by the Geauga County
Board of Mental Retardation and Developmental Disabilities
as a public employee.
Law and Analysis
Ohio Administrative Code 145-5-15(A)(2),1 the relevant law
in place during the period in question, defines an
independent contractor as an individual who:
a) Is party to a bilateral agreement which may be a written
document, ordinance, or resolution that defines the
compensation, rights, obligations, benefits and
responsibilities of both parties;
1 In 2003, this section of Administrative Code was renumbered as 145-1-42. However, the definition of
independent contractor remained the same for the entire period of your service.
No. 16AP-782 8
b) Is paid a fee, retainer or other payment by contractual
agreement for particular services;
c) Is not eligible for workers' compensation or
unemployment compensation;
d) May not be eligible for employee fringe benefits such as
vacation or sick leave;
e) Does not appear on a public payroll;
f) Is required to provide his own supplies and equipment,
and provide and pay his assistants or replacements if
necessary;
g) Is not controlled or supervised by personnel of the public
employer as to the manner of work;
h) Should receive an Internal Revenue Service Form 1099 for
income tax reporting purposes.
The information provided by you and Geauga County
Auditor Frank Ghila demonstrates that you provided services
as an independent contractor pursuant to annual written
contracts, in which you are explicitly referred to as a
"contractor." The Plan of Operation for each contract
specifically outlined the duties performed and rate of
compensation. Further, this document specifically states that
you were not an employee of Geauga County and that you
were not eligible for insurance, workers' compensation, sick
or vacation leave or any other benefits offered to JFS
employees. The contracts also support the fact that you did
not appear on JFS payroll. Instead, you were required to
submit billings for work performed at designated intervals
and to maintain financial records to support the billings.
Lastly, you received an IRS Form 1099 for income tax
reporting purposes. After becoming an OPERS contributing
member on February 2, 2009, you began receiving an IRS
Form W-2.
The contracts also indicate that, unlike a public employee,
you were responsible for researching and acquiring
Professional Liability Insurance. If you chose not to carry
Professional Liability Insurance, you would maintain sole
responsibility for any claim or suit brought against JFS.
No. 16AP-782 9
The hiring or paying of assistants was not an element related
to your service. However, the contact [sic] did permit you to
subcontract, with the prior written approval of JFS.
Additionally, either party could terminate the contact [sic]
with 30 days written notice to the other. JFS exercised this
right of termination in the December 30, 2008 letter from
Tim Taylor to you. While JFS provided (shared) office space,
equipment and supplies, these factors alone are not
determinative as the remaining requirements of
Administrative Code 145-5-15 have been met. Further, JFS'
supervision over your service seemed appropriate, given the
nature of the services performed. JFS' supervision did not
appear to be * * * excessive or unreasonable.
Conclusion
The record clearly establishes that you provided services to
JFS as an independent contractor under a personal service
contract during the relevant time period. As a result, you
were not a public employee eligible for OPERS membership
or service credit for this service.
{¶ 16} 7. By letter dated June 25, 2014, relator, through counsel, administratively
appealed the April 30, 2014 senior staff determination, pursuant to Ohio Adm.Code 145-
1-11, to the OPERS board.
{¶ 17} 8. With the appeal, counsel submitted as exhibits three written contracts
captioned "Help Me Grow Home Visitor CONTRACT." (Emphasis sic.)
{¶ 18} The first contract, exhibit 1, was executed by relator and a representative of
JFS in April 2002. The contract covers the period April 15 through December 30, 2002.
The four-page contract provides in part:
The scope and coverage of services to be provided by the
CONTRACTOR, the program description and budget for
those services, as well as other necessary components are
described in the attached Plan of Operation, which is
incorporated into this contract in its entirety by specific
reference. The Plan of Operation will be maintained on file
with JFS as a part of this contract.
(Emphasis sic.)
No. 16AP-782 10
{¶ 19} Appended to the contract is a two-page document captioned "Help Me Grow
Home Visitor[,] PLAN OF OPERATION." The Plan of Operation was executed by relator
and a representative of JFS in April 2002. The Plan of Operation states in its entirety:
I. Compensation
For time spent in direct client contact (including travel time),
preparation for direct client contact, follow-up to direct
client contact, data entry or required reporting or training,
CONTRACTOR will be compensated at a rate of $25.00
per hour.
II. Expenses
Mileage for necessary travel specifically related to services
performed under this contract will be submitted on the
existing JFS Expense Form. Mileage will be reimbursed at
the rate determined by the Geauga Board of County
Commissioners for county employees.
Other direct expenses specifically related to services
performed under this contract, such as purchasing books,
toys or other incentives, will be submitted to JFS prior to
purchase on a JFS Encumbrance Request form. Subsequent
to the purchase, the original receipt and description of the
expense will be submitted on a JFS Expense Form for
reimbursement. CONTRACTOR will use a JFS tax exempt
form for purchases, as sales tax will not be reimbursed.
III. Space/Supplies
JFS shall furnish all supplies and equipment necessary for
the CONTRACTOR to perform its duties hereunder. This
includes, but is not limited to, paper, pens, phone access,
copy machine access, computer access. JFS will also furnish
office space in its building or other building, if appropriate.
All materials, tools and supplies must remain on JFS
premises unless otherwise agreed by JFS.
IV. Supervision
Clinical supervision of CONTRACTOR will be provided by
JFS, either directly or through contract with another entity.
JFS will be responsible for administrative supervision of all
CONTRACTORS, either directly or through contract with
another entity.
V. Training
No. 16AP-782 11
CONTRACTOR agrees to attend any training required by
the ODJFS or the ODH, as related to the provision of
services under this contract. Other relevant trainings may be
attended, with prior approval of the JFS. Reimbursement
for travel, lodging or meals related to Training, must have
prior approval on a JFS Request for Outside Training.
Expenses will be submitted on a JFS Expense Form, with
original receipts, for reimbursement.
VI. Reporting and Data Entry
CONTRACTOR agrees to comply with all reporting
requirements of JFS, ODHS, ODH or Family First Council.
CONTRACTOR also agrees to enter data into the Early
Track system, as required by the program, or to submit data
for entry into the Early Track system, if appropriate.
VII. Independent Contractor
CONTRACTOR is employed as an independent contractor,
not as an employee of the Geauga County Job and Family
Services. Accordingly, the CONTRACTOR hereby
acknowledges that JFS will not provide insurance, worker's
compensation, medical benefits, vacation and sick leave, or
any other perquisites and benefits which are received by
employees of JFS.
VIII. Insurance
CONTRACTOR is responsible for researching and
acquiring Professional Liability Insurance. If the
CONTRACTOR chooses to not carry Professional Liability
Insurance, the CONTRACTOR will maintain sole
responsibility for any claim, suit or proceeding brought
against them, or against the JFS directly related to services
provided by the CONTRACTOR, on the issue of
malpractice, or wrongdoing of any kind and agrees to hold
JFS harmless in any such claim, suit or proceeding.
(Emphasis sic.)
{¶ 20} The second contract, exhibit 2, submitted by relator with her appeal was
executed by relator and a representative of JFS in July 2003. The contract covers the
period July 1 through December 31, 2003.
{¶ 21} Appended to the second contract is, again, a two-page document captioned
"Help Me Grow Home Visitor[,] PLAN OF OPERATION." (Emphasis sic.) The Plan of
No. 16AP-782 12
Operation, was executed by relator and a JFS representative in July 2003. The Plan of
Operation executed July 2003 differs somewhat from the Plan of Operation executed in
April 2002. The July 2003 Plan of Operation states in its entirety:
I. Compensation
For time spent in direct client contact, preparation for direct
client contact, follow-up to direct client contact, data entry or
required reporting or training, CONTRACTOR will be
compensated at a rate of $25.00 per hour. Hours of service
provided and charged by the CONTRACTOR under the terms
of this shall not exceed one thousand and forty (1040) hours
during the term of this contract.
As provided for in Section V. of this Plan of Operation,
CONTRACTOR will be compensated at the rate of $25.00
per hour for a maximum of ten (10) hours per calendar year
for time spent in mandated training.
For time spent in training beyond the ten hours of mandated
training referred to in this section, CONTRACTOR will be
compensated $25.00 for every two hours of training up to a
maximum of eight hours of training per day. Reimbursement
for training under this provision will not exceed twelve hours
of reimbursement (twenty-four hours of training) during the
contract year.
II. Expenses
Mileage for necessary travel specifically related to services
performed under this contract will be submitted on the
existing JFS Expense Form. Mileage will be reimbursed at
the rate determined by the Geauga Board of County
Commissioners for county employees.
Other direct expenses specifically related to services
performed under this contract, such as purchasing books,
toys or other incentives, will be submitted to JFS prior to
purchase on a JFS Encumbrance Request form. Subsequent
to the purchase, the original receipt and description of the
expense will be submitted on a JFS Expense Form for
reimbursement. CONTRACTOR will use a JFS tax exempt
form for purchases, as sales tax will not be reimbursed.
III. Space/Supplies
JFS shall furnish all supplies and equipment necessary for
the CONTRACTOR to perform its duties hereunder. This
No. 16AP-782 13
includes, but is not limited to, paper, pens, phone access,
copy machine access, computer access. JFS will also furnish
office space in its building or other building, if appropriate.
All materials, tools and supplies must remain on JFS
premises unless otherwise agreed by JFS.
IV. Supervision
The CONTRACTOR will receive a minimum of eight hours of
Clinical Supervision on a monthly basis from a Clinical
Supervisor designated by JFS. Clinical Supervision will occur
through case reviews and by individual consultation. The
CONTRACTOR agrees to follow the recommendations and
guidance of the Clinical Supervisor.
The CONTRACTOR will receive program and administrative
supervision from a Supervisor designated by JFS. The
Supervisor will oversee the provisions of the Contract, the
Plan of Operation, policies and procedures and
administrative tasks such as time sheets, mileage, travel
requests, travel reimbursements and encumbrance requests.
A performance evaluation assessing clinical, programmatic
and contractual performance will be conducted at least once
per calendar year.
V. Training
CONTRACTOR agrees to attend any training required by JFS
or the ODJFS, as related to the provision of services under
this contract. Other relevant trainings may be attended, with
prior approval of the JFS. Reimbursement for travel, lodging
or meals related to Training, must have prior approval on a
JFS Request for Outside Training. Expenses will be
submitted on a JFS Expense Form, with original receipts, for
reimbursement. Reimbursement for expenses for training
submitted under this section will be limited to $400.00 for
the term of this contract.
VI. Reporting and Data Entry
CONTRACTOR agrees to comply with all reporting
requirements of JFS, ODHS, ODH or Family First Council.
CONTRACTOR also agrees to enter data into the Early Track
system, as required by the program, or to submit data for
entry into the Early Track system, if appropriate.
VII. Independent Contractor
CONTRACTOR is employed as an independent contractor,
not as an employee of the Geauga County Job and Family
No. 16AP-782 14
Services. Accordingly, the CONTRACTOR hereby
acknowledges that JFS will not provide insurance, worker's
compensation, medical benefits, vacation and sick leave, or
any other perquisites and benefits which are received by
employees of JFS.
VIII. Insurance
In carrying out the duties of this contract and the Plan of
Operation, the CONTRACTOR maintains res[p]onsibility for
any claim, suit or proceeding brought agains[t] them or JFS
directly related to services provided by the CONTRACTOR.
CONTRACTOR is responsible for researching and acquiring
Professional Liability Insurance. With prior notice to the
Supervisor, up to one half of the annual premium for
professional liability insurance can be billed to JFS for
reimbursement. If the CONTRACTOR chooses to not carry
Professional Liability Insurance, the CONTRACTOR will
maintain sole responsibility for any claim, suit or proceeding
brought against them, or against JFS directly related to
services provided by the CONTRACTOR, on the issue of
malpractice, or wrongdoing of any kind and agrees to hold
JFS harmless in any such claim, suit or proceeding.
(Emphasis sic.)
{¶ 22} The third contract, exhibit 3, submitted by relator with her appeal was
executed by relator and a JFS representative during June and July 2007. The contract
covers the period July 1, 2007 through June 30, 2008.
{¶ 23} Appended to the third contract is again, a two-page document captioned
"Help Me Grow Service Coordination and Home Visitation, PLAN OF OPERATION."
(Emphasis sic.)
{¶ 24} The Plan of Operation executed June/July 2007 differs somewhat from the
Plan of Operation executed in July 2003 and the Plan of Operation executed in April
2002. The Plan of Operation executed June/July 2007 states in its entirety:
I. Compensation
Services to be rendered include Help Me Grow Service
Coordination and Home Visitation. CONTRACTOR will be
compensated for time spent in preparation for or follow-up
to client contact, direct or indirect client contact, data entry,
clinical supervision, related meetings, required reporting or
training, or other time as authorized and approved by the
No. 16AP-782 15
Clinical Supervisor. CONTRACTOR will be compensated at a
rate of $32.30 per hour. Hours of service provided and
charged by the CONTRACTOR will be approximately 40
hours per week and shall not exceed a total of two thousand
(2000) hours during the term of this contract. Hours of
service billed should be rounded to the nearest quarter hour.
The hourly rate of $32.30 shall be the total compensation
paid for all services provided by and expenses of the
CONTRACTOR. JFS may, as it deems necessary, require the
CONTRACTOR to furnish documentation substantiating the
CONTRACTOR'S cost of providing services under this
contract.
II. Expenses
Other expenses related to the provision of services
performed under this contract, such as purchasing books,
toys or other developmental supplies, will be submitted to
JFS prior to the purchase on a JFS Encumbrance Request
form. If the CONTRACTOR is authorized to purchase
supplies or equipment, the CONTRACTOR will submit the
original receipt and description of the expense on a JFS
Expense Form for reimbursement. CONTRACTOR will use a
JFS tax exempt form for purchases, as sales tax will not be
reimbursed. JFS will not pay a mark-up to the
CONTRACTOR for supplies or equipment purchased by the
CONTRACTOR.
III. Space/Equipment
JFS may furnish office space, office equipment and access to
computers as needed to facilitate services to clients and to
JFS. All equipment must remain on JFS premises unless
otherwise agreed to by JFS. JFS may require the
CONTRACTOR to use specific supplies such as program
stationary at no expense to the CONTRACTOR. When
working at JFS, Contractor agrees to conform to the
professional standards and policies applicable to JFS staff
including appearance, building usage and safety.
IV. Supervision
The CONTRACTOR will receive a minimum of four hours of
Clinical Supervision on a monthly basis from a Clinical
Supervisor designated by JFS. Clinical Supervision will occur
through case reviews and by individual consultation. The
CONTRACTOR agrees to follow the recommendations and
guidance of the Clinical Supervisor. The CONTRACTOR
agrees to provide a monthly plan of action detailing the goals
No. 16AP-782 16
and activities the CONTRACTOR will achieve during that
month. The CONTRACTOR will receive program and
administrative supervision from a Supervisor designated by
JFS. The Supervisor will oversee the provisions of the
Contract, the Plan of Operation, the monthly plan of action,
policies, procedures and any related administrative tasks.
V. Training
CONTRACTOR agrees to attend any training required by
JFS, ODJFS, or ODH related to the provision of services
under this contract.
VI. Reporting and Data Entry
CONTRACTOR agrees to comply with all reporting
requirements of JFS, ODHS, ODH or Family First Council.
CONTRACTOR also agrees to enter data into the Early Track
system, as required by the program, or to submit data for
entry into the Early Track system, if appropriate.
VII. Independent Contractor
CONTRACTOR is employed as an independent contractor,
not as an employee of the Geauga County job and Family
Services. Accordingly, the CONTRACTOR hereby
acknowledges that JFS will not provide insurance, worker's
compensation, medical benefits, vacation and sick leave, or
any other perquisites [sic] and benefits which are received by
employees of JFS.
VIII. Insurance and Indemnification
In performing the duties of this contract and the Plan of
Operation, the CONTRACTOR maintains responsibility for
any claim, suit or proceeding brought against them or JFS
directly related to services provided by the CONTRACTOR. If
the CONTRACTOR chooses to not carry Professional
Liability Insurance, the CONTRACTOR will maintain sole
responsibility for any claim, suit or proceeding brought
against them, or against JFS directly related to services
provided by the CONTRACTOR, on the issue of malpractice,
or wrongdoing of any kind and agrees to hold JFS harmless
in any such claim, suit or proceeding.
(Emphasis sic.)
No. 16AP-782 17
{¶ 25} 9. With the appeal of the April 30, 2014 senior staff determination (General
Counsel's April 30, 2014 letter), relator also submitted regulations published by the
Internal Revenue Service ("IRS") regarding independent contractor status.
{¶ 26} 10. By letter dated August 19, 2014, pursuant to Ohio Adm.Code 145-1-11,
OPERS assigned relator's appeal to a hearing examiner.
{¶ 27} 11. On October 24, 2014, the hearing examiner conducted a prehearing
telephone conference with the parties.
{¶ 28} 12. On January 7, 2015, the hearing examiner held an evidentiary hearing.
The hearing was recorded and transcribed for the record. The transcript is 275 pages in
length.
{¶ 29} 13. Prior to the January 7, 2015 hearing, relator and JFS, through counsel,
agreed to a stipulation of facts which presents 25 enumerated paragraphs:
[One] Deborah W. Pruce was hired as a "Help Me Grow"
home visitor on or about April 15, 2002. She signed her first
contract with Geauga County Job and Family Services
("JFS") as a "contractor" for JFS on or about April 14, 2002.
The compensation agreement was set forth in the Plan of
Operation. * * * Mrs. Pruce acknowledged in all the JFS
contracts for the period of April 15, 2002 through January
21, 2009 that she was hired as an independent contractor
without benefits received by employees of JFS and was
responsible for obtaining professional liability insurance if
she desired coverage.
[Two] She was compensated at the rate of $25.00 per hour
plus reimbursement for mileage and for other expenses
incurred that were necessary to perform her job.
[Three] JFS has its principal office at 12480 Ravenwood
Drive, Munson Township, Geauga County, Ohio.
[Four] JFS provided a furnished office at that location with a
telephone, separate telephone number to her desk, and
computer, use of JFS copy and fax machines, and other
necessary items ("tools") to perform her job.
[Five] Mrs. Pruce entered client data and records of visits
into the Early Track program, a proprietary software system
installed on the JFS computers provided to the contractors.
No. 16AP-782 18
[Six] JFS provided clinical and administrative supervision of
the contractors.
[Seven] Reimbursement for mileage and other expenses by
JFS was required to be submitted on a "JFS expense form"
with the original receipts.
[Eight] JFS acknowledged that it was responsible for
administering the Help Me Grow ("HMG") program and
providing visitation services under a funding contract with
the Geauga County Family First Council ("FFC"). Funds for
HMG were provided by the State of Ohio.
[Nine] On or about July 1, 2003, Mrs. Pruce signed another
contract, * * * which added the following conditions to which
she agreed:
Compliance with the requirements imposed upon JFS
Preparation of detailed records including date of service,
time of service, family served, time for appointment
preparation, follow-up, and reporting data was entered into
the Early Track system
Payment at her hourly rate for preparation of JFS/HMG
reports required by funding sources and for attendance at
training programs
Preparation of itemized invoices which detailed her time
Participation in JFS evaluation of the program
Compliance with reporting child abuse, neglect or criminal
activity required by public agencies and its employees under
Ohio law (§2151.421 O.R.C.)
Participation in clinical supervision of eight hours per month
by a JFS employee, including case reviews and individual
consultation
Administrative supervision by the HMG supervisor [Gina
Shultz, a JFS employee]
Mrs. Pruce was required to visit families to perform her job
functions. Occasionally she met with families at the JFS
offices on Ravenwood Drive.
[Ten] She was not permitted to assign the contract nor hire
assistants without prior written JFS approval. Her work was
supervised by two JFS employees, Nancy Seelbach, Program
Coordinator, and Gina Schultz, her supervisor. She received
a yearly IRS Form 1099 for amounts paid to her.
No. 16AP-782 19
[Eleven] Mrs. Pruce was reimbursed for mileage at the same
rate as Geauga County employees. If she needed supplies or
materials not available at JFS offices on Ravenwood Drive,
she was provided with a sales tax exemption form to
purchase the items.
[Twelve] JFS and Mrs. Pruce signed annual contracts
pursuant to which she provided continuous uninterrupted
service to JFS under the HMG program. The contracts, with
a few exceptions noted below, were substantially similar * *
*.
[Thirteen] In 2007, JFS issued RFP's for service
coordinator/home visitor and family support specialist, * * *
and a legal notice was published * * *.
[Fourteen] JFS hired the same contractors on or about July
1, 2007, * * *. Deborah's hours of service were the same,
approximately 40 hours per week not to exceed 2,000 during
the term of the contract, and she was paid $32.30 per hour
Travel expense reimbursement was eliminated. The
contractor was required to purchase professional liability
insurance coverage.
[Fifteen] The contract was extended through June 30, 2009,
with the rate of compensation reduced from $32.30 per hour
to $30.25 per hour, but the mileage reimbursement was
restored depending upon the number of families served.
[Sixteen] On December 30, 2008, Mrs. Pruce was notified by
Tim Taylor, Executive Director of JFS, that her contract was
terminated effective January 30, 2009.
[Seventeen] The contract between JFS and the Geauga
County Family First Council terminated on the same date.
[Eighteen] Effective February 1, 2009, the Geauga County
Family First Council contracted with the Geauga County
Board of Mental Retardation and Developmentally Disabled
("GCBDD") for funding and administration of the HMG
program.
[Nineteen] Deborah Pruce was hired as an employee of
GCBDD with full benefits on February 2, 2009 * * * and has
continued her employment to the present time. In addition
to a salary and benefits, she is reimbursed for mileage.
No. 16AP-782 20
GCBDD provides office space, office equipment and supplies.
She continues to enter family service data into the Early
Track software system. Mrs. Pruce submits timesheets on the
same forms she used as a contractor for JFS.
[Twenty] Nancy Seelbach, who is an employee of JFS,
continued as the program coordinator of HMG.
[Twenty-one] FFC contracted with GCBDD for HMG services
to the present time.
[Twenty-two] Mrs. Pruce was not on the JFS payroll and did
not have an employee file.
[Twenty-three] Under her contract, Mrs. Pruce was not
eligible for vacation or sick time, and therefore did not
accrue sick or vacation time.
[Twenty-four] Mrs. Pruce did not maintain a time sheet in
the same manner as JFS employees, and she was not trained
on tracking her time for payroll purposes.
[Twenty-five] The HR department did not conduct an
orientation session with Mrs. Pruce, as was done with new
JFS employees.
{¶ 30} 14. On March 31, 2015, the hearing examiner issued her 14-page Report and
Recommendation ("R & R"). The hearing examiner's R & R is appended as an exhibit to
this magistrate's decision.
{¶ 31} 15. By letter dated April 2, 2015, OPERS "Executive Legal Assistant," Maria
J. Myers provided to relator a time-stamped copy of the R & R. The letter further advised:
Pursuant to the provisions of Ohio Administrative Code 145-
1-11(C), you may file written objections to this Report and
Recommendation. The written objections must not exceed 15
pages in length. The objections must be actually received and
filed at OPERS' office within 15 days of the date of the
issuance of the Report and Recommendation.
If a written objection is filed, the OPERS Board may permit
the parties to make a personal appearance before the Board
prior to its final review of the appeal, and such notice of the
personal appearance will be sent under separate cover.
No. 16AP-782 21
16. Relator did not file objections to the March 31, 2015 R & R.
17. By letter dated September 28, 2015, Myers informed relator:
Per Ohio Administrative Rule 145-1-11(C)(2), no personal
appearance before the Board is permitted by the parties at
this meeting as no objections were filed. We will notify you in
writing of the Board's decision to this matter.
{¶ 32} 18. At its December 16, 2015 meeting, the board voted unanimously to
accept the findings of fact and conclusions of law issued by the hearing examiner in her R
& R.
{¶ 33} The board's December 16, 2015 minutes state:
Ms. Laura Parsons reported on the membership
determination appeal in the matter of Deborah Pruce and
Geauga County Department of Job and Family Services. The
Board is being asked to consider whether Ms. Pruce was a
public employee eligible for OPERS membership for her
service with the Geauga County Department of Job and
Family Services from April 15, 2002 through January 31,
2009.
The hearing examiner prepared a March 31, 2015 Report and
Recommendation to the Board with findings of fact and
conclusions of law. Neither party filed written objections to
the Report and Recommendation. Because no party filed
objections, neither party is permitted to make a personal
appearance before the Board.
{¶ 34} 19. On November 16, 2016, relator, Deborah Pruce, filed this mandamus
action.
Conclusions of Law:
{¶ 35} The issue is whether the OPERS board abused its discretion in determining
that relator was not a public employee of JFS for the period April 15, 2002 through
January 31, 2009, but was instead an "independent contractor" as defined by former Ohio
Adm.Code 145-5-15(A)(2) and currently by Ohio Adm.Code 145-1-42(A)(2).
{¶ 36} Finding no abuse of discretion, it is the magistrate's decision that this court
deny relator's request for a writ of mandamus, as more fully explained below.
{¶ 37} Effective January 1, 2003 and currently, Ohio Adm.Code 145-1-41(A)
provides:
No. 16AP-782 22
In making any determination as to whether an individual is a
contract employee or independent contractor under section
145.036 of the Revised Code, the public employees
retirement board shall review, including but not limited to,
the elements described in paragraphs (A)(1) and (A)(2) of
rule 145-1-42 of the Administrative Code.
{¶ 38} Effective January 1, 2003 and currently, Ohio Adm.Code 145-1-42(A)
provides:
(A) For purposes of Chapter 145. of the Revised Code, and
Chapter 145-1 of the Administrative Code, the following
definitions apply:
(1) "Contract employee" means an individual who:
(a) Is a party to a bilateral agreement which may be a written
document, ordinance, or resolution that defines the
compensation, rights, obligations, benefits and
responsibilities of the individual as an employee;
(b) Is paid earnable salary at a specific periodic rate for
services personally performed for the public employer and
who appears on the employer's payroll;
(c) Is eligible for workers' compensation or unemployment
compensation;
(d) May be eligible for employee fringe benefits such as
vacation or sick leave;
(e) Is controlled or supervised by personnel of the public
employer as to the manner of work; and
(f) Should receive an Internal Revenue Service form W-2 for
income tax reporting purposes.
(2) "Independent contractor" means an individual who:
(a) Is a party to a bilateral agreement which may be a written
document, ordinance, or resolution that defines the
compensation, rights, obligations, benefits and
responsibilities of both parties;
(b) Is paid a fee, retainer or other payment by contractual
arrangement for particular services;
No. 16AP-782 23
(c) Is not eligible for workers' compensation or
unemployment compensation;
(d) May not be eligible for employee fringe benefits such as
vacation or sick leave;
(e) Does not appear on a public employer's payroll;
(f) Is required to provide his own supplies and equipment,
and provide and pay his assistants or replacements if
necessary;
(g) Is not controlled or supervised by personnel of the public
employer as to the manner of work; and
(h) Should receive an Internal Revenue Service form 1099
for income tax reporting purposes.
{¶ 39} Prior to January 1, 2003, the provisions of current Ohio Adm.Code 145-1-
42, as above quoted, were found at 145-5-15 which was repealed effective January 1, 2003.
{¶ 40} Some observations are in order. Ohio Adm.Code 145-1-41(A) provides
instructions as to how the adjudicator shall apply the "elements" described in paragraphs
(A)(1) and (2) of rule 145-1-42.
{¶ 41} Thus, applying Ohio Adm.Code 145-1-41(A)'s instructions to the eight
[(a)─(h)] elements listed at Ohio Adm.Code 145-1-42(A)(2), it is clear that the adjudicator
is instructed to "review" all eight of the elements listed under the caption "Independent
contractor." However, the adjudicator is "not limited" to the eight elements described.
Nowhere does Ohio Adm.Code 145-1-41(A) instruct the adjudicator that all eight of the
elements must be satisfied (by some evidence) in order to reach a conclusion that the
individual is an "Independent contractor."
{¶ 42} Given the above reading of Ohio Adm.Code 145-1-41(A) and 145-1-42(A), it
is clear that relator is incorrect in asserting here that "all eight" of the elements must be
met in order for the adjudicator to conclude that the individual is an independent
contractor. (Reply brief at 10.) The statute is silent as to whether any number of elements
must be met in order to find independent contractor status.
{¶ 43} If the meaning of the statute is unambiguous and definite, it must be
applied as written and no further interpretation is necessary. State ex rel. Burrows v.
No. 16AP-782 24
Indus. Comm., 78 Ohio St. 3d 78, 81 (1997). Unambiguous statutes are to be applied
according to the plain meaning of the words used. Id. Courts are not free to delete or
insert other words. Id.
{¶ 44} It can be noted that elements (a) through (g) are interconnected by
semicolons. However, elements (g) through (h) are interconnected by a semicolon
followed by the word "and." According to relator, this court must place the word "and"
following all the semicolons that interconnect elements (a) through (g). In effect, relator
is inviting this court to insert words that are not in the statute. This court should decline
relator's invitation.
{¶ 45} It can be further noted that Ohio Adm.Code 145-1-42(A)(1) and (2) fails to
establish the weight to be given by the adjudicator in his or her review of the eight
elements listed under "Independent contractor." The statute does not state that each
element must be given equal weight as to the other elements.
Relator's Concessions
{¶ 46} In her brief, relator concedes that four of the eight "elements" set forth at
Ohio Adm.Code 145-1-42(A)(2) that the OPERS board must review are satisfied.
(Relator's brief at 24.) That is, relator concedes there is sufficient (some) evidence to
establish "elements" (c),(d), (e), and (h) as follows:
(c) Is not eligible for workers' compensation or
unemployment compensation;
(d) May not be eligible for employee fringe benefits such as
vacation or sick leave;
(e) Does not appear on a public employer's payroll;
***
(h) Should receive an Internal Revenue Service form 1099
for income tax reporting purposes.
{¶ 47} According to relator, "JFS, the public employer, failed to prove the other
four requirements." (Relator's brief at 24.)
{¶ 48} In her reply brief, relator states:
No. 16AP-782 25
In the instant matter, the interpretation of OAC 145-1-
42(A)(2)(c), (f) and (g) was not reasonable when the Relator
presents clear and convincing evidence that the three
subsections have not been satisfied, and Respondent's failed
to present "some evidence" in support thereof.
(Reply brief at 10-11.)
{¶ 49} Thus, in her reply brief, relator further concedes that only three "elements"
have not been satisfied. However, relator has previously conceded that element (c),
regarding workers' compensation and unemployment compensation, has been satisfied.
Thus the magistrate concludes that relator is only challenging the satisfaction of elements
(f) and (g).
Ohio Adm.Code 145-1-42(A)(2)(f)
{¶ 50} As earlier noted, element (f) under Ohio Adm.Code 145-1-42(A)(2) states
that the individual "[i]s required to provide his own supplies and equipment, and provide
and pay his assistants or replacements if necessary."
{¶ 51} The hearing examiner seems to find that there is but one element toward
independent contractor status, and that element is Ohio Adm.Code 145-1-42(A)(2)(f). In
that regard, at paragraph 5 of her "Findings of Fact," the hearing examiner finds "JFS
provided Ms. Pruce with an office, telephone, computer, and supplies." Under "Analysis,"
the hearing examiner determined "[t]hroughout Ms. Pruce's entire tenure as a service
provider for HMG, JFS provided her with an office, desk, telephone, computer and
supplies."
{¶ 52} In fact, JFS was required "to provide office space, telephone access,
computer and copier access and office supplies." (Footnote omitted.)
{¶ 53} However, that JFS provided supplies and equipment rather than relator
providing her own does not mandate a finding that relator was not an independent
contractor.
Ohio Adm.Code 145-1-42(A)(2)(g)
{¶ 54} As earlier noted, element (g) under Ohio Adm.Code 145-1-42(A)(2) states
that the individual "[i]s not controlled or supervised by personnel of the public employer
as to the manner of work."
No. 16AP-782 26
{¶ 55} At the March 31, 2015 hearing before the hearing examiner, JFS social
services director Gina Schultz testified at length. Apparently, the hearing examiner found
Ms. Schultz to be a credible witness because the hearing examiner relied extensively on
her testimony in rendering findings regarding element (g) under Ohio Adm.Code 145-1-
42(A)(2).
{¶ 56} In her R & R, the hearing examiner extensively summarized Schultz's
testimony relating to the supervision issue set forth at Ohio Adm.Code 145-1-42(A)(2)(g):
As the administrative supervisor, she paid close attention to
the rules and mandates of the program, the systems
established by the program and the funding status. ODH
required the clinical supervisor to provide a minimum of
eight hours of clinical supervision/guidance to each HMG
service provider each month. This requirement, which
included case reviews and individual consultation, was
fulfilled by meeting with the providers both individually and
in a group setting. Ms. Schultz would review new rules issued
by ODH and discuss ways to get more children involved in
HMG and to secure the services needed. Ms. Schultz testified
that she did evaluate "the manner in which the independent
contractors' cases were managed."
At some point during the time period that Ms. Pruce had
contracts with JFS, ODH required that the service providers,
such as Ms. Pruce, also be evaluated to ensure that they had
their service credentials, and mandatory training hours.
Therefore, Ms. Schultz met annually with Ms. Pruce to
review these matters. Ms. Schultz testified that it was not a
performance evaluation. Moreover, Ms. Schultz was also
required to observe Ms. Pruce in the field. This observation
was part of the mandatory credentialing process.
In addition to her duties for HMG, Ms. Schultz also
supervised the social workers, who were employees of JFS.
She stated that the supervision received by Ms. Pruce was
different than that received by JFS employee social workers.
For example, the social workers needed to let Ms. Schultz
know where they were at all times. In addition, she checked
their desk calendars and the sign-in and sign-out boards. If
they were going to be late or sick, they needed to contact her.
Any vacation time or time off had to be approved. In
contrast, Ms. Schultz did not monitor the "comings and
goings" of Ms. Pruce, who was free to arrange her own
No. 16AP-782 27
schedule, was not required to check in or out, and was not
required to come into the JFS offices on a daily basis. She
was not required to work specific days, unless there were
team meetings, which were mandated by ODH.
Furthermore, Ms. Pruce was not required to spend a set
number of hours at the JFS offices. At times, Ms. Pruce
worked from home. Moreover, the contract service
providers, such as Ms. Pruce, were not required to go to JFS
staff meetings. JFS employees, however, were required to
attend these meetings.
{¶ 57} Significantly, relator does not contend that the hearing examiner's R & R
regarding Schultz's testimony is not supported by the hearing transcript.
{¶ 58} Here, relator and respondent spar over the relevancy of Schultz's testimony
regarding comparison of her supervisory control over her social services caseworkers.
{¶ 59} In its brief, respondent OPERS states:
In her Report and Recommendation, the Hearing Examiner
stated that the level of supervision Relator received was
mandated by the Ohio Department of Health under the grant
requirements, and that the supervision was different than
the supervision JFS social worker employees received. * * *
At the OPERS hearing, Gina Schultz, JFS Social Services
Director, testified that she had more control over the social
services caseworkers that she supervised than she had over
the Help Me Grow independent contractors.
(Respondent OPERS' brief at 14.)
{¶ 60} In her reply brief, relator argues:
Respondent OPERSB [sic] also argues that the supervision of
JFS social worker employees was different than that of the
HMG home visitors and cites the hearing examiner's report
in support. Evidence of more control and supervision over
social services caseworkers is not "some evidence" of no
control or supervision over Relator and the HMG home
visitors.
(Relator's reply brief at 9.)
{¶ 61} The magistrate disagrees with relator's suggestion that Schultz's testimony
comparing the differences in supervision level is irrelevant to the supervision issue here.
Clearly, as indicated by the R & R, the Help Me Grow services coordinators were under
No. 16AP-782 28
much less supervision than the social services caseworkers. Moreover, relator's
suggestion that there must be no control or supervision is incorrect. State ex rel. Nese v.
State Teachers Retirement. Bd. of Ohio, 136 Ohio St. 3d 103, 2013-Ohio-777.
{¶ 62} Accordingly, for all the above reasons, it is the magistrate's decision that this
court deny relator's request for a writ of mandamus.
/S/ MAGISTRATE
KENNETH W. MACKE
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign
as error on appeal the court's adoption of any factual finding
or legal conclusion, whether or not specifically designated as
a finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically
objects to that factual finding or legal conclusion as required
by Civ.R. 53(D)(3)(b).
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