Wednesday, July 25, 2012

Ohio Supreme Court: Classified Employees Have Fallback Rights Even if Duties Change and Become Unclassified

This morning, the Ohio Supreme Court issued a decision affecting current and former state civil service employees. State ex rel. Barley v. Ohio Dept. of Job & Family Servs., Slip Opinion No. 2012-Ohio-3329. In that case, an employee who had been hired in 1989 and had been promoted into other classified civil service positions as a hearing officer was fired in 2006. He appealed through SPBR, which found that duties added to his position in 2004 rendered his formerly classified position as unclassified. He tried to argue that he was then entitled to fall-back rights under Ohio Revised Code §124.11(D), but the SPBR refused to consider this argument and its decision was affirmed on appeal to the Franklin County Court of Common Pleas. In 2008, he requested ODJFS to recognize his fall-back rights under ORC 124.11, and filed a mandamus action in 2010 with the Court of Appeals when ODJFS refused. The appellate court found that he was never appointed to the unclassified position when the character of the position changed upon the assignment to him of unclassified duties in 2004. The Supreme Court reversed, finding that the restrictive interpretation of “appointment” could deprive most classified employees of their fall-back rights and that the plaintiff’s arguments were not barred by collateral estoppels or res judicata.

In relevant part, ORC 124.11(D) provided in 2004 that:

An appointing authority whose employees are paid directly by warrant of the auditor of state may appoint a person who holds a certified position in the classified service within the appointing authority's agency to a position in the unclassified service within that agency. A person appointed pursuant to this division to a position in the unclassified service shall retain the right to resume the position and status held by the person in the classified service immediately prior to the person's appointment to the position in the unclassified service, regardless of the number of positions the person held in the unclassified service. Reinstatement to a position in the classified service shall be to a position substantially equal to that position in the classified service held previously, as certified by the director of administrative services.
The appellate court found that the mere assignment of duties to the plaintiff in 2004 did not constitute an “appointment” to an unclassified position (even though the practical affect was to render it an unclassified position because classified status depends on duties, not job titles).

[I]t is evident that a position’s status as classified or unclassified cannot be determined without considering the duties associated with the position. This is consistent with our longstanding precedent that the job title or position classification used by the appointing authority is not dispositive on the issue whether a public employee is in the classified or unclassified service and that the true test requires an examination of the duties actually delegated to and performed by the employee.

Therefore, when ODJFS assigned additional duties to [the employee] that changed his position from the classified service to the unclassified service, it appointed him to the unclassified position, regardless of whether his position title remained the same. ODJFS placed its employee, . . ., in an unclassified position by assigning him duties that took the group of duties to be performed by him outside the classified service.
The Court declined to treat as a binding admission a statement made by the employee during the SPBR proceedings that he had never been appointed to an unclassified position and had only ever held classified positions because the statement was made in the context of disputing his suspension and termination.

The Court found that affirming the Court of Appeals

would permit state employers desiring to remove classified employees without the just cause required by R.C. 124.34 to change the employees’ job classification to the unclassified service by adding new duties that are inconsistent with classified service, which would then both deprive the employees of the ability to contest any removal from state employment and simultaneously strip them of their R.C. 124.11(D) statutory right to fall back to their prior classified positions. In effect, state employers could decide which employees would have fallback rights and which employees would not. The General Assembly could not have intended such an unreasonable result.
The most surprising discussion in the decision was the Court’s decision to not bar the claim due to res judicata in that the employee did raise the issue before the SPBR and could have raised it on appeal. This was the alternative basis of the denial before the appellate court.

It is true that “[r]es judicata, whether claim preclusion or issue preclusion, applies to quasi-judicial administrative proceedings.” . . . . . But the court of appeals erred in concluding that [the employee] could have raised the issue of whether he was a classified employee in 1998 in his previous administrative appeals. Those appeals were limited to the issue whether [the employee] was a classified employee when he was suspended and ultimately removed from his employment with ODJFS in 2005 and 2006. In fact, when [he] attempted to raise the issue of his fallback rights under R.C. 124.11(D) in his first administrative appeal, his attempt was rejected and the SPBR expressly limited the appeal to a consideration of his job duties from September 2004 to December 2005. [His] classified status in 1998 was irrelevant to his administrative appeals. Therefore, the court of appeals erred in concluding that res judicata barred [his] contention that he was entitled to fallback rights.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.