State ex rel. Beavercreek Twp. Fiscal Officer v. Graff (Slip Opinion) ( 2018 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Beavercreek Twp. Fiscal Officer v. Graff, Slip Opinion No. 2018-Ohio-3749.]
NOTICE
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South Front Street, Columbus, Ohio 43215, of any typographical or other
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the opinion is published.
SLIP OPINION NO. 2018-OHIO-3749
THE STATE EX REL. BEAVERCREEK TOWNSHIP FISCAL OFFICER v. GRAFF ET
AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Beavercreek Twp. Fiscal Officer v. Graff, Slip
Opinion No. 2018-Ohio-3749.]
Mandamus—R.C. 507.021(A) unambiguously requires township fiscal officer to
obtain board of township trustees’ approval for salary offered to assistants
hired under R.C. 507.021(A)—Fiscal officer failed to show board abused
its discretion in rejecting her salary proposals—Board exceeded its
authority under R.C. 507.021(A) in setting the assistants’ salaries—Writ
granted in part and denied in part.
(No. 2016-0747—Submitted January 23, 2018—Decided September 20, 2018.)
IN MANDAMUS.
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SUPREME COURT OF OHIO
Per Curiam.
{¶ 1} In this original action, relator, Beavercreek Township Fiscal Officer
Christy L. Ahrens, seeks a writ of mandamus to compel respondents, the Board of
Beavercreek Township Trustees and its members, Carol Graff, Jeffrey Roberts, and
Thomas Kretz (collectively, “the board”), to approve and fund the salaries of two
positions in the fiscal office in the amount she proposed.
{¶ 2} We conclude that R.C. 507.021(A) authorizes Ahrens to hire two
assistants to the fiscal officer and to set compensation for those positions, subject
to prior approval by the board. But because she has not demonstrated that the board
abused its discretion when it denied her specific salary requests, we deny her
request for a writ of mandamus compelling the board to approve and fund the two
assistant positions at the specific salaries that she proposed. In addition, we
conclude that the board exceeded its authority when it adopted Resolutions 2016-
158 and 2016-159 setting the annual salaries for the two assistants to the fiscal
officer. Accordingly, we issue a writ of mandamus ordering the board to rescind
Resolutions 2016-158 and 2016-159 and to consider a new compensation proposal
submitted by Ahrens.
Background
{¶ 3} Ahrens has been the fiscal officer for Beavercreek Township since
2006. In 2006, the board hired Deb White as a full-time accounts-payable/payroll
technician. White reported to the assistant to the fiscal officer. According to the
job description submitted as evidence, her basic responsibilities included record-
keeping; reviewing the purchasing process “for proper account distribution,
outdated purchase orders and reconciliation of vendor invoices;” and
“[d]ocument[ing] and updat[ing] accounts payable procedures and accounting
manuals.” White’s annual salary was $53,872 in 2014 and $55,494.40 in 2015. An
annual salary of $57,158.40 was originally budgeted for 2016.
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January Term, 2018
{¶ 4} In 2007, Ahrens appointed James Barone to the full-time position of
assistant to the fiscal officer. Barone reported to Ahrens and, according to the job
description submitted as evidence, was involved in “planning, organizing,
coordinating and directing [the] activities of the Office of [the] Fiscal Officer,” and
in addition to other duties, he was “[r]esponsible for monitoring, preparing, and
posting all revenues; monitoring all fixed assets (purchasing, transfers, and
disposal); and * * * preparing and filing financial statements and reports (monthly,
quarterly, and yearly).” In 2014, Barone’s annual salary was $76,507.60.
{¶ 5} On November 14, 2014, Kretz and the township administrator, J.
Alexander Zaharieff, met with Ahrens to discuss the creation of a township finance
department that would be led by a finance director, who would report to the
township administrator rather than to the fiscal officer. According to Ahrens, Kretz
informed her that Barone would be hired as the finance director at the same salary
and with the same responsibilities as he currently had as her assistant and that if she
did not agree to the change, the board could defund the position of assistant to the
fiscal officer. (Kretz denies threatening to defund the assistant position.) The board
discussed its power to fund and defund positions at a March 9, 2015 special
meeting.
{¶ 6} On March 16, 2015, the board created a finance department—whose
employees would report to the township administrator—and it approved the
proposed job description for the finance-director position. The board also approved
a new township organizational structure that gave the township administrator
supervising authority over the accounts-payable/payroll technician, thus
eliminating the fiscal officer’s supervising authority.
{¶ 7} On March 30, 2015, the board appointed Barone the finance director
at the same salary he was making as assistant to the fiscal officer, $78,080.88.
Barone’s 2016 salary was budgeted at $81,167.06.
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{¶ 8} R.C. 507.021(A) authorizes a fiscal officer to “hire and appoint one
or more persons as the fiscal officer finds necessary to provide assistance to the
township fiscal officer or deputy fiscal officer” and to “set the compensation of
those persons subject to the prior approval of the board of township trustees.” On
February 12, 2016, Ahrens’s attorney contacted the board’s attorney with a
proposal to hire two assistants to the fiscal officer pursuant to R.C. 507.021(A).
The first assistant to the fiscal officer would earn an annual salary between $75,000
and $92,000 (the parties herein refer to this position as the “lead assistant” position).
The second assistant to the fiscal officer would earn an annual salary between
$50,000 and $65,000 (the parties herein refer to this position as the accounts-
payable/payroll-assistant position). The lead assistant would report directly to the
fiscal officer, and the accounts payable/payroll assistant would report to the lead
assistant. According to Ahrens’s attorney, the lead assistant would perform the
duties “formerly performed by the assistant to the fiscal officer position, prior to
the creation of the finance director position” and the accounts-payable/payroll
assistant would perform “most of the duties” of the accounts-payable/payroll-
technician position.
{¶ 9} On March 28, 2016, the board discussed Ahrens’s proposal and
adopted four resolutions:
(1) Resolution 2016-160 eliminated the position of finance director, effective
May 9, 2016.
(2) Resolution 2016-161 eliminated the position of accounts-payable/payroll
technician under the finance director and township administrator, effective
May 9, 2016.
(3) Resolution 2016-158 authorized the lead-assistant position at an annual
salary of $40,515.
(4) Resolution 2016-159 authorized the position of accounts-payable/payroll
assistant under the fiscal officer at an annual salary of $28,200.
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January Term, 2018
In May 2016, the board approved a $5,000 salary increase for each of the
new positions.
{¶ 10} Ahrens alleges that under R.C. 507.021(A), the board must approve
the fiscal officer’s proposed compensation for her assistants and allocate the
necessary funds absent an abuse of discretion by the fiscal officer. Ahrens requests
a writ of mandamus directing the board to approve and fund the proposed salaries
for the lead-assistant and accounts-payable/payroll-assistant positions.
Analysis
{¶ 11} To be entitled to a writ of mandamus, Ahrens must establish (1) a
clear legal right to the requested relief, (2) a corresponding clear legal duty on the
part of the board to provide it, and (3) the lack of an adequate remedy in the ordinary
course of law. State ex rel. Waters v. Spaeth, 131 Ohio St. 3d 55, 2012-Ohio-69,
960 N.E.2d 452, ¶ 6. Ahrens must prove her entitlement to the writ by clear and
convincing evidence. State ex rel. Doner v. Zody, 130 Ohio St. 3d 446, 2011-Ohio-
6117, 958 N.E.2d 1235, paragraph three of the syllabus.
{¶ 12} Ahrens’s mandamus claim hinges on her authority and the board’s
obligation under R.C. 507.021(A).
R.C. 507.021(A)
{¶ 13} The board argues in its brief that R.C. 507.021(A) grants it the
“discretion to approve and appropriate amounts for the fiscal officer and,
specifically, for amounts to be paid to any assistants.” In its view, when a funding
dispute arises, R.C. 507.021(A) places the burden on the township fiscal officer to
prove that her request was reasonable and that the board of trustees abused its
discretion in denying the request.
{¶ 14} By contrast, Ahrens argues that R.C. 507.021(A) gives the township
fiscal officer the primary authority to set the compensation of any assistants hired
under that provision. In her brief, she urges us to hold that under the current version
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of R.C. 507.021(A), the “requested appropriation must be made, unless the trustees
prove that the request is an abuse of discretion.”
{¶ 15} When this court seeks to ascertain the meaning of a statute, the
threshold question is whether it is ambiguous. Jacobson v. Kaforey, 149 Ohio St. 3d
398, 2016-Ohio-8434, 75 N.E.3d 203, ¶ 8. “It is a cardinal rule of statutory
construction that where the terms of a statute are clear and unambiguous, the statute
should be applied without interpretation.” Wingate v. Hordge, 60 Ohio St. 2d 55,
58, 396 N.E.2d 770 (1979). When a statute contains language that “ ‘is plain and
unambiguous, and conveys a clear and definite meaning, [this court] must rely on
what the General Assembly has said’ * * * and give effect only to the words the
legislature used, making neither additions to, nor deletions from, the statutory
language.” Wilson v. Lawrence, 150 Ohio St. 3d 368, 2017-Ohio-1410, 81 N.E.3d
1242, ¶ 11, quoting Jones v. Action Coupling & Equip., Inc., 98 Ohio St. 3d 330,
2003-Ohio-1099, 784 N.E.2d 1172, ¶ 12.
{¶ 16} R.C. 507.021(A) is not ambiguous. It expressly grants to a township
fiscal officer the authority to decide whether assistants need to be hired and if so,
whom to hire for those positions. The second sentence of the statutory provision at
issue grants the fiscal officer the authority to set the compensation for the assistants,
“subject to the prior approval of the board of township trustees.” (Emphasis added.)
This language clearly indicates that the General Assembly intentionally constrained
the fiscal officer’s ability to set her own assistants’ salary; it makes board approval
a prerequisite to the determination of the salary of a fiscal-officer’s assistant.
{¶ 17} On the other hand, the plain language also contains a limitation on
the board’s authority; it may either grant or withhold its approval of a fiscal
officer’s compensation proposal, but it may not, as it did here, withhold approval
and set the compensation for the fiscal officer’s assistants. Thus, the board lacked
the authority to adopt Resolutions 2016-158 and 2016-159. Thus, we hold that R.C.
507.021(A) unambiguously requires a fiscal officer to obtain board approval for the
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January Term, 2018
salary offered to any assistant hired under this section and it allows the board to
either approve or deny the salary proposal. However, the board does not have
authority under R.C. 507.021(A) to set the salaries for the fiscal officer’s assistants.
{¶ 18} Ahrens points to the prior version of R.C. 507.021(A) as proof that
the legislature enacted the current language to give the fiscal officer primary power
over setting the salaries for fiscal-office employees. In support of her argument,
she invokes the rule of statutory interpretation that provides that “[a] legislative
amendment must be presumed to change the effect and operation of the law.”
Lynch v. Gallia Cty. Bd. of Commrs., 79 Ohio St. 3d 251, 257-258, 680 N.E.2d 1222
(1997). Prior to 2004, R.C. 507.021 provided that “[t]he board of township trustees
may employ such number of persons as it finds necessary to provide stenographic
and clerical assistance to the township clerk or deputy clerk.” Am.Sub.H.B. No.
441, 133 Ohio Laws, Part II, 2193. (The term “fiscal officer” was substituted for
“clerk” in 2005.) Sub.S.B. No. 107, 151 Ohio Laws, Part I, 406, 458. In 2004, the
General Assembly gave the clerk (fiscal officer) the power to decide whether to
hire assistants and whom to hire as assistants and also the power to propose the
salary for those assistants, subject to approval from the board. Ahrens argues in
her brief that “[i]f this change is to mean anything, then the current language of
R.C. 507.021(A) places the power of setting compensation primarily with the
township fiscal officer.”
{¶ 19} But as explained above, the language of R.C. 507.021(A) is
unambiguous. Indeed, Ahrens’s interpretation of R.C. 507.021(A) would render
the phrase “subject to the prior approval of the board of township trustees”
meaningless and thus fails to give effect to the words the legislature used. See
Columbia Gas Transm. Corp. v. Levin, 117 Ohio St. 3d 122, 2008-Ohio-511, 882
N.E.2d 400, ¶ 19 (When interpreting statutes, “[c]ourts may not delete words used
or insert words not used”). The effect of the legislative change was clearly to give
the fiscal officer some authority over her own budget, but in order to hold that she
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has exclusive authority to set compensation, we would need to disregard the
unambiguous statutory language, which we will not do. R.C. 507.021(A) requires
the fiscal officer to obtain the board’s approval before she sets the compensation
for her assistants. .
{¶ 20} Because the statute does not grant the fiscal officer exclusive
authority to set the compensation of her assistants, mandamus cannot be used to
compel the board to approve her compensation request absent a showing that the
board abused its discretion in denying the request. State ex rel. Veterans Serv.
Office of Pickaway Cty. v. Pickaway Cty. Bd. of Commrs., 61 Ohio St. 3d 461, 463,
575 N.E.2d 206 (1991). In Veterans Serv. Office, a county veterans-service
commission sought a writ of mandamus to compel a board of county commissioners
to appropriate the full amount it requested. In denying the writ, we noted that the
relevant statute provided for “review and revision” by the board of the
commission’s budget request and held that the commission was not automatically
entitled to its full request and that it could not compel the board to grant the request
absent a showing that its denial was an abuse of discretion. Id. at 462-463.
{¶ 21} Because R.C. 507.021(A) calls for the prior approval of the board of
township trustees, we reach a conclusion here analogous to the conclusion in
Veterans Serv. Office: the board’s decision whether to approve or reject the fiscal
officer’s compensation proposal is entitled to a presumption of reasonableness. In
other words, R.C. 507.021(A) grants the fiscal officer the authority to propose to
the board the compensation her assistants should receive, but if the board rejects
that proposal, the burden is on the fiscal officer to show that the board abused its
discretion in denying her request. See also State ex rel. Trussell v. Meigs Cty. Bd.
of Commrs., 155 Ohio App. 3d 230, 2003-Ohio-6084, 800 N.E.2d 381 (4th Dist.)
(statute does not grant sheriff final authority for appropriations to his office and
therefore he is not entitled to a writ of mandamus to compel the board of
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commissioners to approve his full budget request absent a demonstration that the
board abused its discretion in denying the request).
{¶ 22} Accordingly, to be entitled to the requested writ of mandamus,
Ahrens must demonstrate, by clear and convincing evidence, that the board abused
its discretion when it rejected her compensation proposal.
Abuse of discretion
{¶ 23} To demonstrate an abuse of discretion, Ahrens must show that the
board acted arbitrarily, unreasonably, or unconscionably in rejecting the
compensation request. See State ex rel. Wilke v. Hamilton Cty. Bd. of Commrs., 90
Ohio St. 3d 55, 61, 734 N.E.2d 811 (2000) (“ ‘abuse of discretion’ implies an
unreasonable, arbitrary, or unconscionable attitude”).
{¶ 24} Ahrens contends in her reply brief that the board used “bad math” in
rejecting her proposal and awarding lower salaries for the two assistant positions.
She criticizes the survey that was submitted as evidence by the board in support of
its rejection of her proposal. The survey shows the salaries paid to persons in
similar positions in other Ohio townships, and it indicates various factors related to
each position, including the title of the position, whether the position is full-time or
part-time, the hourly rate/annual salary of the position, the population of the
township, the 2013 general-fund revenues of the township, and the 2013 total
revenues of the township. The survey indicated an average annual salary of
$39,801.82 for positions similar to the lead-assistant position and an average annual
salary of $29,322.80 for positions similar to the accounts-payable/payroll-assistant
position. The board also compared and took into account the job descriptions for
the new lead-assistant and accounts-payable/payroll-assistant positions that it
created versus the job descriptions provided by many of the surveyed counties.
{¶ 25} Ahrens argues that the salary survey was flawed because it included
both full-time and part-time positions, resulting in a lower average salary. She also
argues that the survey included positions that were more comparable to the
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accounts-payable/payroll-assistant position in determining the average salary for
the lead-assistant position. To illustrate her point, Ahrens points to the job
description for the position of “fiscal analyst II” in Sylvania Township that was
included in the survey. There is a handwritten notation at the top of the page that
reads, “Comparable to: Account Payable $17.18 hr. 10 yr. service.” In addition,
the salary survey for the accounts-payable/payroll-assistant position includes 20
allegedly comparable positions, only seven of which are full-time positions.
Because the board approved two full-time positions, the fact that it relied on data
from part-time positions in other counties does detract from the weight of that
evidence.
{¶ 26} Yet despite the shortcomings of the survey, Ahrens has not produced
evidence to demonstrate that the board abused its discretion. In fact, the survey of
comparable township positions that she submitted as evidence is not without fault.
Referring to her survey, Ahrens contends that the salary ranges she proposed for
the lead-assistant and accounts-payable/payroll-assistant positions were “in line
with * * * similar positions with other nearby townships.” However, her salary
survey lacks information about the townships, which is necessary to support
comparison, and therefore is insufficient to satisfy her burden of proof.
{¶ 27} She further argues that the unreasonableness of the board’s decision
is demonstrated by the fact that “[t]he two Assistant positions are almost identical
to the Finance Director and Accounts Payable/Payroll Technician positions” that
were previously funded. Although there are many overlaps in the duties of the prior
positions and the new assistant positions, Ahrens fails to take into account
noteworthy differences. For example, the finance-director position included the
duties of providing revenue forecasts and assisting the township administrator in
preparing the township budget and five-year departmental financial forecasts. The
lead-assistant position that Ahrens proposed does not include these duties. Because
preparing the budget is a significant duty, this change supports the board’s claim
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that the lead-assistant position differs significantly from the finance-director
position.
{¶ 28} In addition, the board acted reasonably by taking into account the
township’s financial condition when it considered Ahrens’s proposal. The board
emphasizes in its brief that it considered “the ongoing need to balance the general
fund budget, and the years of the Township’s general fund expenditures that
exceeded the revenues and caused a reduction in carryover funds.” Moreover,
evidence in the record demonstrates that Ahrens publicly commented on the poor
financial condition facing the township, criticizing the board as engaging in deficit
spending. Therefore, it was not unreasonable or arbitrary for the board to consider
the township’s financial condition when reviewing Ahrens’s proposed
compensation for the two assistants, which, combined, would have cost the
township over $100,000 in salary alone.
{¶ 29} Nor does the evidence support Ahrens’s complaint that in rejecting
her proposed salaries, the board was singling out her office to receive budget cuts.
Ahrens argues that Trustee Graff conceded in a March 28, 2016 board meeting that
the board was cutting the salaries of the fiscal-office employees in half while
leaving all other office’s budgets intact. But taken in context, Graff’s comments
do not support Ahrens’s claim that no other office’s budget would be cut; the only
salaries at issue at the March 28th meeting were those proposed by Ahrens. Graff’s
comments alone do not support Ahrens’s claim that the board acted arbitrarily and
unreasonably in rejecting her proposed salaries.
{¶ 30} In conclusion, Ahrens has not presented clear and convincing
evidence that the board abused its discretion in rejecting her proposed salaries. But
we also hold that the board exceeded its authority under R.C. 507.021(A) when it
set the salaries for Ahrens’s assistants. Accordingly, we issue a writ of mandamus
ordering the board of trustees to rescind Resolutions 2016-158 and 2016-159 and
to consider a new compensation proposal from Ahrens.
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Writ granted in part
and denied in part.
O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, FISCHER, and
DEWINE, JJ., concur.
DEGENARO, J., not participating.
_________________
Andrew P. Pickering, Special Assistant Greene County Prosecuting
Attorney, for relator.
Surdyk, Dowd & Turner Co., L.P.A. and Dawn M. Frick, for respondents.
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