State ex rel. O'Grady v. Griffing

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State: Ohio

Court: Ohio Southern District Court

Docket No: 2013-Ohio-2615

Case Date: 06/24/2013

Plaintiff: State ex rel. O'Grady

Defendant: Griffing

Preview:[Cite as State ex rel. O'Grady v. Griffing, 2013-Ohio-2615.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO                                                                                  :                      PER CURIAM OPINION
ex rel. LOUISE O’GRADY,
:
Relator,
:                                                                                              CASE NO. 2011-T-0122
- vs -
:
DAVID GRIFFING, AUDITOR,
:
Respondent.
Original Action for Writ of Mandamus.
Judgment: Writ granted.
John B. Juhasz, 7081 West Boulevard, Suite 4, Youngstown, OH                                   44512-4362 (For
Relator).
Thomas J. Wilson, Comstock, Springer & Wilson Co., L.P.A., 100 Federal Plaza East,
Suite 926, Youngstown, OH   44503-1811 (For Respondent).
PER CURIAM.
{¶1}   This original action is before the court for final disposition based on the
parties’ stipulations, exhibits,  submitted  testimony,  and written  arguments.    Relator,
Louise O’Grady, n.k.a. Rowland, is employed as a bailiff/deputy bailiff at the Warren
Municipal Court.   She made application with the Ohio Public Employees Retirement
System  (“OPERS”) to  commence  receiving  her vested  statutory retirement  benefits
effective December 31, 2010.   This process required certification by the fiscal officer of
the city of Warren of Ms. O’Grady’s final payroll as of that date.   We are faced with the

narrow question of whether respondent, David Griffing, auditor for the city of Warren,
may refuse to complete the task of certifying Ms. O’Grady’s final payroll based on the
fact that there was no break in her service at the court.   We answer the question in the
negative and hold that Ms. O’Grady is entitled to a writ of mandamus ordering Mr.
Griffing to certify her final payroll with the final earnable salary date as requested (Form
SRF-85) and to submit the form to OPERS.
{¶2}   The amended arguments before this court indicate Mr. Griffing previously
refused to certify Ms. O’Grady’s final payroll because she maintained her employment
without break in service following her submitted final earnable salary date.   However,
Ms. O’Grady, based on her age and years of service, has certain vested statutory
benefits to which she is entitled.   She is permitted to exercise her right to receive those
benefits  at  any  time  following  the  qualifying  events  based  on  age  and  duration of
service.   How those benefits will be received, when those benefits will commence, and
in what amount, are matters between Ms. O’Grady and OPERS.   Mr. Griffing, as the city
auditor, has provided no authority that would allow him to independently assess Ms.
O’Grady’s eligibility to receive her retirement and, similarly, no authority to determine
when Ms. O’Grady’s vested statutory retirement benefits will commence.   In failing to
certify Ms. O’Grady’s final payroll, Mr. Griffing essentially made a determination as to
when  Ms.  O’Grady  could  redeem  her  vested  benefits.    As  fully  set  forth  below,
respondent’s motion to dismiss is denied, and relator is entitled to the entry of final
judgment in her favor.
{¶3}   The submitted stipulations of fact indicate the relevant factual foundation
of this action is fairly straightforward.    Ms. O’Grady serves as bailiff/deputy bailiff to
Judge Thomas P. Gysegem in the Warren Municipal Court.    Mr. Griffing serves as
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Auditor and Chief Fiscal Officer for the city of Warren.   On November 29, 2010, Judge
Gysegem notified Warren Municipal Court Clerk of Court Margaret M. Scott that Ms.
O’Grady intended to take her retirement and remain in her current position:
Please be advised as of December 31, 2010, Louise L. O’Grady,
who has thirty-one (31) years in the PERS system is going to take
her PERS Retirement.   Louise will remain as a court employee in
her present position as my Secretary/Deputy Bailiff indefinitely from
that  point  on.    She  will  not  be  taking  any  time  off  during  this
changeover.     Please  make  any  necessary  personnel  record
adjustments reflecting that fact.
{¶4}   Following  this  correspondence,  Judge  Gysegem  issued  two  judgment
entries: a December 8,  2010 entry appointing Ms. O’Grady as a bailiff/deputy bailiff,
effective December  8,  2010; and a December  21,  2010 entry again appointing Ms.
O’Grady to the bailiff/deputy bailiff position, with the new effective date of January 1,
2011.   During this same period of time, Ms. O’Grady made application with OPERS to
commence receipt of her vested statutory benefits.
{¶5}   In  order  for  an  employee’s  benefit  amount  to  be  properly  calculated,
OPERS must receive certification of that employee’s final payroll from the appropriate
fiscal officer: in this case, the city of Warren Auditor (Form SRF-85).   If that employee
continues  employment  after  her  final  earnable  salary  date  with  a  qualifying  public
employer,  as  in  the  case  sub  judice,  she  must  also  complete  a                        “Notice  of  Re-
employment of an OPERS Benefit Recipient” (Form SR-6).
{¶6}   Thus, Ms. O’Grady submitted the date of December 31, 2010, as her final
earnable salary date and January 31, 2011, as her final reporting period end date.   She
prepared  a  traditional  pension  plan  retirement  application,  and  in  anticipation  of
continuing employment following commencement of the benefits receipt period, she
completed the “Notice of Re-employment of an OPERS Benefit Recipient.”   However,
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Mr.  Griffing  ultimately  refused  to  certify  Ms.  O’Grady’s  final  payroll,  deleting  the
submitted dates while noting the certification was “premature.”
{¶7}   On   March                                                                                 1,                                                                              2011,   OPERS   sent   Mr.   Griffing   the   following
correspondence, stating in part:
We  received  the  above  member’s  electronic  Certification  of
Employee’s Final Payrolls (Form [SR]F-85) on February 22, 2011.
However, this certification is invalid because you did not provide a
service  termination  date  and  your  comment  stated  that  it  is
premature in submitting certification.
Please void this certification and re-submit a new electronic [SR]F-
85 form as soon as possible with Ms. O’Grady’s Final Earnable
Salary Date as of December 31, 2010.
{¶8}   Mr.  Griffing  explained  his  action  in  a  subsequent  correspondence  to
OPERS:   “I cannot certify [Ms. O’Grady’s] final earnable salary for 2010 as she is still
employed by the city.   You will not be receiving Form [SR]F-85 until she does retire.”
Without Mr. Griffing’s certification, Ms. O’Grady’s retirement application could not be
processed.
{¶9}   Now, Ms. O’Grady requests extraordinary relief via writ of mandamus to
compel Mr. Griffing to certify her final payroll (Form SRF-85) and submit the form to
OPERS.    Following this court’s issuance of an alternative writ, Mr. Griffing filed an
answer and, eventually, a motion to dismiss.   We note Ms. O’Grady’s petition originally
set forth a different form number; this court subsequently granted Ms. O’Grady’s motion
to amend the requested writ to identify Form SRF-85.
{¶10}                                                                                             “Mandamus is a writ, issued in the name of the state to an inferior tribunal,
a corporation, board, or person, commanding the performance of an act which the law
specially enjoins as a duty resulting from an office, trust, or station.”   R.C. 2731.01.         “A
mandamus is a civil proceeding, extraordinary in nature since it can only be maintained
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when there is no other adequate remedy to enforce clear legal rights.”   State ex rel.
Widmer v. Mohney, 11th Dist. No. 2007-G-2776, 2008-Ohio-1028, ¶31.
{¶11}  Before  a  writ  of  mandamus  will  lie,  a  relator  must  demonstrate  the
following: (1) a clear legal right to have a specific act performed by a public official; (2)
the public official has a corresponding clear legal duty to perform that act; and (3) there
is no plain and adequate remedy that could be pursued in the ordinary course of the
law.   State ex rel. Sanders v. Enlow, 11th Dist. No. 2010-P-0022, 2010-Ohio-5053, ¶14;
See also R.C. 2731.05.   Each element must be met by clear and convincing evidence
before a court is justified in granting the extraordinary writ of mandamus.   State ex rel.
Mahan v. Bd. of Trustees Ohio Police & Fire Pension Fund,  156 Ohio App.3d  540,
2004-Ohio-1520 (11th Dist.), ¶10.
{¶12}  Neither party disputes that Ms. O’Grady may reenter public employment
following receipt of her vested benefits.   Indeed, R.C. 145.38(B)(1) and (2) provide:
{¶13}                                                                                           (1)  Subject  to  this  section  and  section  145.381  of  the  Revised
Code, a PERS retirant or other system retirant may be employed by
a public employer.    If so employed, the PERS retirant or other
system retirant shall contribute to the public employees retirement
system in accordance with section  145.47 of the Revised Code,
and  the  employer  shall  make  contributions  in  accordance  with
section 145.48 of the Revised Code.
{¶14}                                                                                           (2) A public employer that employs a PERS retirant or other system
retirant, or enters into a contract for services as an independent
contractor with a PERS retirant, shall notify the retirement board of
the employment or contract not later than the end of the month in
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which the employment or contract commences.   Any overpayment
of benefits to a PERS retirant by the retirement system resulting
from delay or failure of the employer to give the notice shall be
repaid to the retirement system by the employer.
{¶15}  As stated earlier, the dispute rests on Mr. Griffing’s refusal to certify Ms.
O’Grady’s final payroll.   Upon review, we determine the elements of mandamus have
been met.
{¶16}  First, Ms. O’Grady has a clear legal right to have her final payroll certified
by Mr. Griffing.   The final payroll certification must be submitted to OPERS before her
retirement application and determination of benefits can be processed.   It is undisputed
that Mr. Griffing’s refusal to certify her final payroll necessarily inhibits Ms. O’Grady’s
ability to redeem her vested benefits.   Eligibility of members to receive OPERS benefits
based on age and service are determined under R.C. 145.32, et seq.   It also appears
undisputed that, pursuant to this statute, Ms. O’Grady has vested statutory benefits to
which she is entitled, having qualified by virtue of her age and years of service.   She is
permitted  to  exercise  her  right  to  redeem  those  benefits  at  any  time.    The  many
questions  concerning  the  receipt  of  benefits—eligibility,  when,  how,  and  in  what
amount—are not questions to be answered by Mr. Griffing.   It is the function of OPERS
to determine the answers for each retirant.   For now, and for purposes of this case, it is
clear that Ms. O’Grady has participated in OPERS for over 30 years and has vested
statutory benefits that she is entitled to redeem.   These benefits cannot be redeemed
without  the  submission  of  a  retirement  application,  and  Ms.  O’Grady’s  application
cannot be completed without Mr. Griffing’s final payroll certification.   Thus, Ms. O’Grady
has a clear legal right to have her final payroll certified by Mr. Griffing.
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{¶17}  Further, Mr. Griffing has a clear legal duty to certify the form.   He does not
rely on any authority that suggests he has discretion to refuse to certify the form.
Rather, Mr. Griffing argues he does not have a clear legal duty to certify a final earnable
salary  date  when  the  record  indicates  Ms.  O’Grady  “did  not  retire.”    Mr.  Griffing
highlights the following: there is no journal entry declaring Ms. O’Grady to be “retired”;
there was no break in service following the submitted final earnable salary date; and
there was no indication Ms. O’Grady stopped working, in accordance with the dictionary
definition and common understanding of the concept of “retirement.”   By his argument,
Mr.  Griffing  suggests  it  is  incumbent  upon  him  to  independently  investigate  the
circumstances  of  each  submitted  final  payroll  date  because  some  employees  may
change their mind about retiring.   Mr. Griffing also contends Ms. O’Grady’s continuation
of service as a city of Warren employee following receipt of OPERS benefits may
prospectively  violate  a  Warren  City  Ordinance  which  prohibits  retirants  collecting
OPERS benefits from continuing city employment for more than 20 hours per week.
{¶18}  However, the resolution of this case does not depend on the definition of
“retired” or whether Ms. O’Grady is a full-time or part-time employee of the Warren
Municipal Court or the city of Warren.   The determinative question is, simply, whether
Mr. Griffing was required to certify Ms. O’Grady’s final payroll.   Though Mr. Griffing has
made much of the fact that Ms. O’Grady continued to work after December 31, 2010,
without a break in service, Ms. O’Grady has the right to redeem her benefits under Ohio
law  and  can  apply  for  receipt  of  those  benefits  when  she  chooses.    Any  issues
concerning  her  eligibility  to  receive  those  benefits  are  between  OPERS  and  Ms.
O’Grady.
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{¶19}  The evidence before this court indicates Ms. O’Grady was certain about
her effective date of December  31,  2010, and never entertained the possibility of a
prospective date change.   The evidence also indicates the final earnable salary date
(December 31, 2010) and the reporting period end date (January 31, 2011) were both
known, as Ms. O’Grady submitted both dates which, in turn, appeared in the initial SRF-
85 form.   These dates were later deleted in conjunction with Mr. Griffing’s insistence
that the certification of final payroll was premature.   However, Mr. Griffing’s obligation is
merely  to  provide  the  requested  information,  not  to  take  a  role  in  determining  the
amount of benefits or the applicant’s eligibility to receive benefits.   Certification of the
final payroll is but a ministerial act, i.e., “one which a person performs in a given state of
facts, in a prescribed manner, in obedience to the mandate of legal authority, without
regard to or the exercise of his own judgment upon the propriety of the act being done.”
(Emphasis added.)   State ex. rel Watkins v. Donahey, 110 Ohio St. 494, 500 (1924).   It
is the responsibility of OPERS to assess a final payroll date before processing an
employee’s retirement application.   In fact, when Mr. Griffing submitted the amended
payroll certification, noting the document was “premature,” OPERS directed him to “re-
submit a new electronic [SR]F-85 form as soon as possible with Ms. O’Grady’s Final
Earnable Salary Date as of December 31, 2010.”   Indeed, there is no provision in the
application  process  for  Mr.  Griffing  to  offer  an  assessment  that  an  application  is
“premature.”    Mr. Griffing has no discretion to alter the date on which Ms. O’Grady
decides to commence receipt of vested statutory benefits that she is qualified to receive
based on age and years of service.
{¶20}  Mr. Griffing argues he could not certify Ms. O’Grady’s final payroll because
there was no break in service, and therefore, she did not in fact “retire.”   However, the
8

law anticipates this circumstance; contrary to making the retirant ineligible to receive
benefits, R.C. 145.38(B)(4)(a) provides for the consequence of reemployment:
{¶21}  A PERS retirant who has received a retirement allowance for less
than  two  months  when  employment  subject  to  this  section
commences shall forfeit the retirement allowance for any month the
PERS retirant is employed prior to the expiration of the two-month
period.    Service  and  contributions  for  that  period  shall  not  be
included in calculation of any benefits payable to the PERS retirant,
and those contributions shall be refunded on the retirant’s death or
termination of the employment.
{¶22}  O.A.C. 145-1-75 similarly states:                                                           “A PERS retirant who has received a
retirement allowance for less than two months and who becomes employed by a public
employer shall forfeit the retirement allowance for any month in which such retirant is
employed during the two month period immediately following such retirant’s effective
retirement benefit date.”
{¶23}  Thus,  R.C.                                                                                 145.38(B)(4)(a)  and  O.A.C.          145-1-75  clearly  envision  the
situation wherein an OPERS retirant may continue public service without waiting two
months  after  retiring.    In  the  event  of  reemployment,  the  retirant  must  forfeit  the
retirement allowance for any portion of the two-month period immediately following the
effective benefit date.   The very purpose of OPERS Form SR-6 is to verify the timing
and  circumstances  of  reemployment  with  a  public  employer  during  this  two-month
period.   Therefore, rather than prohibiting continuation of public employment following
receipt of vested OPERS benefits, the law sets forth a limited consequence during the
first two-month period.
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{¶24}  Finally, Ms. O’Grady has no other adequate remedy in the ordinary course
of the law.   The evidence before this court is replete with Ms. O’Grady’s attempts to
circumvent Mr. Griffing by contacting OPERS officials directly.   It is clear, however, that
Mr. Griffing must complete the ministerial task of certifying the submitted final payroll
date.
{¶25}  Thus, Ms. O’Grady has a clear legal right to have her final payroll certified
by Mr. Griffing so that she may receive the vested benefits to which she is entitled; Mr.
Griffing has a corresponding duty to certify the form; and Ms. O’Grady has no other
adequate remedy at law.   Accordingly, Ms. O’Grady is entitled to the relief requested,
and a writ of mandamus shall issue to compel Mr. Griffing to certify Ms. O’Grady’s final
payroll.
TIMOTHY P. CANNON, P.J., DIANE V. GRENDELL, J., THOMAS R. WRIGHT, J.,
concur.
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