JtJi 1 ^^?008. In the,&uprqttte Court of (ObiD. RK OF COURT SUPSi1=.lUlE COURT OF OHIO. STATE EX REL. CYNTHIA DAVIS et al., Case No.

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1 In the,&uprqttte Court of (ObiD STATE EX REL. CYNTHIA DAVIS et al., V. Appellees/Cross-Appellants, PUBLIC EMPLOYEES RETIREMENT BOARD et al., Appellants/Cross-Appellees. Case No On Appeal from the Franklin County Court of Appeals, Tenth Appellate District Court of Appeals Case No. 04AP-1293 THIRD BRIEF OF APPELLANT/CROSS-APPELLEE PUBLIC EMPLOYEES RETIREMENT BOARD James E. Melle ( ) *Counsel ofrecord Donell R. Grubbs ( ) BUCKLEY KING LPA One Columbus, Suite West Broad Street Columbus, OH (614) (614) fax Counsel for Appellees/Cross-Appellants Cynthia Davis, et al. NANCY H. ROGERS Attorney General of Ohio Laura Erebia Parsons ( ) Assistant Attorney General *Counsel of Record 30 East Broad Street, 26th Floor Columbus, Ohio (614) (866) fax Counsel for Appellant/Cross-Appellee Public Employees Retirement Board Teri G. Rasmussen ( ) *Counsel ofrecord LANE ALTON & HORST, LLC Two Miranova Place, Suite 500 Columbus, OH (614) (614) fax Counsel for Appellant/Cross-Appellee Franklin County, et al. RON O'BRIEN Franklin County Prosecuting Attorney Nick A. Soulas, Jr. ( ) Assistant Prosecuting.Attorney 373 South High Street, 13`h Floor Columbus, OH (614) Counsel for Appellant/Cross-Appellee Franklin County, et al. JtJi 1 ^^?008 RK OF COURT SUPSi1=.lUlE COURT OF OHIO

2 TABLE OF CONTENTS Page TABLE OF AUTHORITIES... ui iii 1. INTRODUCTION ARGUMENT... 2 A. Standard of Review...3 B. Relators' claims for OPERS membership and service credit are barred by this Court's decision in Van Dyke....3 Appellant-Cross Appellee Public Employees Retirement Board Proposition of Law No. 1: Membership in the Ohio Public Employees Retirement System is compulsory for all public employees and, in situations where the individual's status as a public employee is in doubt, for those individuals that the Board determines are or should have been public employees....3 Appellant-Cross Appellee Public Employees Retirement Board Proposition of Law No. 2: A proceeding of a public retirement system is quasi-judicial in nature where the parties are given notice, a hearing and the opportunity to present evidence Appellant-Cross Appellee Public Employees Retirement Board Proposition of Law No. 3: Individuals mctking a request for a determination that they are public employees for their employment with the same employer and for the same period of time seek the uniformly applicable result of OPERS membership and service credit and not individually tailored relief...9 C. Relators'-Appellants raise no new arguments in support of their cross-appeal...12 Cross Appellee-Appellant Public Employees Retirement Board Proposition of Law No. 1: The Board's decision to deny Relators' claims for OPERS membership because they are similarly situated to Ms. Van Dyke is supported by prior precedent of this Court and general principle of stare decisis and is not a constitutional violation ofprocedural due process....13

3 TABLE OF CONTENTS (Continued) Cross Appellee-Appellant Public Employees Retirement Board Proposition of Law No. 2: A public retirement system complies with procedural due process where the parties to its proceeding are given notice and an opportunity to be heard...14 III. CONCLUSION CERTIFICATE OF SERUICE ii

4 TABLE OF AUTHORITIES Cases Page Bell v. State Med. Bd. of Ohio (6th Dist.), 1986 Ohio App. Lexis Bentley v. Grange Mut. Casualty Ins. Co. (10th Dist. 1997), 119 Ohio App.3d Brown v. City of Dayton (2000), 89 Ohio St.3d passim Dolce v. Lawrence (1999), 1999 Ohio App. Lexis Doyle v. Ohio Bureau of Motor Vehicles (1990), 51 Ohio St.3d 46...:...passim E.B. v. T.J. (8th Dist.), 2006-Ohio Fifth Third Bank of Columbus v. Bowman (10th Dist.), 1990 Ohio App. Lexis Goodson v. McDonough Power Equip., Inc. (1983), 2 Ohio St.3d , 14 Grant Fritzsche Enters. v. Fritzsche (12th Dist. 1995), 107 Ohio App.3d Hirt v. Hirt (9th Dist.), 2006-Ohio Howland v. Purdue Phara L.P., 104 Ohio St.3d 584, 2004-Ohio Kinsey v. Bd. of Trustees of the Police and Firemen's Disability & Pension Fund of Ohio (1990), 49 Ohio St.3d Kirkhart v. Keiper (2004), 101 Ohio St.3d iii

5 TABLE OF AUTHORITIES (Continued) Page Korn v. Ohio St. Med. Board (10th Dist. 1988), 61 Ohio App.3d LTV Steel Co. v. Indus. Comm. Of Ohio (10th Dist. 2000), 140 Ohio App.3d passim Marion Ob/Gyn, Inc. v. State Med. Bd. of Ohio (10th Dist. 2000), 137 Ohio App.3d Nye v. State of Ohio Bd ofexaminers ofarchitects (10th Dist.), 165 Ohio App.3d 502, 2006-Ohio O'Nesti v. DeBartolo Realty Corp., 113 Ohio St.3d 59, 2007-Ohio passim State ex rel. Davis v. Public Emples. Ret. Bd, 2007-Ohio , 12 State ex rel. Mallory v. Pub. Emps. Retirement Board (1998), 82 Ohio St.3d , 7 State ex rel. Moss v. Ohio State Highway Patrol Ret. Sys., 97 Ohio St.3d 198, 2002-Ohio State ex rel. Republic Steel Corp. v. Ohio Civil Rights Comm. (1975), 44 Ohio St.2d State ex rel. Rock v. Sch. Employees Ret. Bd. (10th Dist.) 2004-Ohio State ex rel. Van Dyke v. Pub. Emps. Retirement Bd, 99 Ohio St.3d 430, 2003-Ohio passim Superior Brand Meats v. Lindley (1980), 62 Ohio St.2d , 7 iv

6 Statutes TABLE OF AUTHORITIES (Continued) Page R.C (A)(1)...1 R. C (A)(2) R.C (A)(3)...1 R.C (A)(4)...3, 6 R.C (D)...1 R.C (A)...3 R.C R.C R.C Other Authorities O.A.C , 16 O.A.C (C)(1)(c)...16 v

7 I. INTRODUCTION Relators incorrectly argue that "the question here is whether, under these facts and circumstances FCPDO was a "public employer" as that term is defined in R.C (D) and whether Relators meet the defmition of "public employees" under R.C (A)(1) or (3)." (Relators' Brief, p.26). The issue before this Court is whether the Ohio Public Employees Retirement System ("OPERS") Board (the "Board") abused its discretion by relying on this Court's decision in State ex rel. Van Dyke v. Pub. Emps. Retirement Bd., 99 Ohio St.3d 430, 2003-Ohio-4123, finding that the Private Nonprofit Defender "was no longer a county agency" after its incorporation in 1985, to deny Relators' claims for OPERS membership. As OPERS set forth in its First Brief, this is the third time this Court has been presented with claims by former and current employees of the Franklin County Public Defender Office ("FCPDO") to obtain membership and service credit in OPERS for their employment with the FCPDO. In the two previous cases, State ex rel. Mallory v. Pub. Emps. Retirement Board (1998), 82 Ohio St.3d 235 and Van Dyke, this Court applied R.C (A)(2) and necessarily determined that, following the incorporation of the FCPDO to create the Private Nonprofit Defender, the office was a private employer who had contracted to take over what was previously a publicly operated function and its employees were not public employees eligible for OPERS membership. It is undisputed that Relators were each hired by the Private Nonprofit Defender on or after January 1, 1008, which was part of the same period of time that was at issue in Van Dyke. Thus, the Board properly denied Relators' claims for OPERS membership because they were not employed by a public employer and therefore are not public employees eligible for OPERS membership for their service with the Private Nonprofit Defender from January 1, 1985 through December 31,

8 Relators attempt to distinguish this case from Mallory and Van Dyke by arguing that their case is "the only case to make these arguments and to present this evidence." (Relators' Brief, p.16). Relators ignore the fact that these "arguments" are based on the evidence involving the same set of facts, the same employer, and the same period of time as the evidence in Van Dyke. More importantly, although Relators attempt to portray this case as a new and different case, this case involves the same legal issue that was decided by this Court in Van Dyke: whether the Private Nonprofit Defender was a private or public employer after its incorporation as a nonprofit entity. Based on prior precedent of this Court and the relevant and controlling statutory provisions, the Board properly determined that Relators were not public employees during the postincorporation period and were not eligible for OPERS because they were not employed by a public employer. II. ARGUMENT Relators appear to agree with the Court of Appeals' that, should this Court find that it was an abuse of discretion to deny Relators' claims for OPERS membership on the basis of this Court's decision in Van Dyke, the matter must be remanded back to OPERS for a decision on the merits regarding Relators' arguments of "agency, control, alter ego, lack of mind, will or existence of its own, or piercing the corporate veil."z State ex rel. Davis et al. v. Public Employees Ret. Board (10th Dist.), 2007-Ohio-6594, 42. In essence, Relators acknowledge that 1 Relators only arguments on their cross-appeal are constitutional due process challenges which this Court need not address if it finds Relators are similarly situated to Ms. Van Dyke and that the Board did not abuse its discretion by applying the Van Dyke decision to deny Relators' claims for OPERS membership. 2 Relators incorrectly state that the Court of Appeals ordered OPERS to conduct a "merits hearing." However, the Court of Appeals granted a "limited writ of mandamus ordering [the Board] to vacate its order denying relators' claims for PERS service credit and to issue a new order adjudicating relators' claims on their merits." Davis, 2007-Ohio-6594, 43. 2

9 the Board has final authority to determine whether they are public employees eligible for OPERS membership for their service with the Private Nonprofit Defender. Notwithstanding this acknowledgment, Relators spend a large portion of their brief setting forth facts and making arguments that they allege demonstrate the "control" exercised by the Franklin County Respondents over the Private Nonprofit Defender. (Relators' Brief, 4-12; 33-36) These arguments are irrelevant to the issue that is before this Court. This Court need only decide whether the Board's decision to apply the Van Dyke decision to deny Relators' claims for OPERS membership is supported by the evidence. A. Standard of Review Relators' allege that the abuse of discretion standard is inapplicable here despite the fact that this Court has consistently said that the abuse of discretion standard and "some evidence" rule are the appropriate standards in mandamus actions. Relators arguments are without merit for the reasons set forth in the Board's First Brief. B. Relators' claims for OPERS membership and service credit are barred by this Court's decision in Van Dyke. Appellant-Cross Appellee Public Employees Retirement Board Proposition of Law No. 1: Membership in the Ohio Public Employees Retirement System is compulsory for all public employees and, in situations where the individual's status as a public employee is in doubt, for those individuals that the Board determines are or should have been public employees. Pursuant to R.C (A)(4), "[i]n all cases of doubt, the public employees retirement board shall determine whether any person is a public employee and its decision is final." It is well-settled that, pursuant to R.C (A), membership in the retirement system is compulsory for all public employees and cannot be waived. Relators incorrectly and 3

10 disingenuously argue that the Board did not issue a decision that Relators were not public employees. The record clearly establishes that OPERS General Counsel, the hearing examiner and the Board each considered Relators' evidence and determined that the Relators were similarly situated to Nadine Omia Van Dyke. Based on the evidence and this Court's decision in Van Dyke, the Board issued a decision finding that Relators were not employed by a public employer during the relevant time period, and therefore denying Relators' claims that they were public employees eligible for OPERS membership. (Joint Appendix, D-1 - D-13). Relators' argument that because participation in OPERS is compulsory, OPERS cannot apply collateral estoppel to deny their claims for membership assumes the ultimate conclusion that Relators are public employees despite the fact that the Board has determined that they are not. The Board properly determined that Relators were not public employees eligible for OPERS membership for their service with the Private Nonprofit Defender. This Court's decision in Van Dyke actually and necessarily decided the exact claim being raised by Relators in this action-whether individuals hired by the Private Nonprofit Defender on or after January 1, 1985 were public employees eligible for OPERS membership and service credit. Relators are clearly similarly situated to Ms. Van Dyke as they were hired during the same time period, on or after January 1, 1985, by the same employer. (Joint Supp., Vol. 2, ;R ). Therefore, Relators' attempts to avoid the preclusive effect of this Court's decision in Van Dyke are without merit and must be rejected. Relators argue that they are raising different issues here that have not been previously decided by this Court. However, despite Relators' arguments, the record clearly establishes that Relators, like Ms. Van Dyke, sought the same general finding that they were public employees eligible for OPERS membership and service credit for their service with the Private Nonprofit Defender. 4

11 Relators incorrectly argue that every decision maker has "acknowledged that Relators' evidence and issues were different than the issues raised by Ms. Van Dyke." OPERS General Counsel and the hearing examiner acknowledged only that Relators' legal theories (and not the central issue, claims or the underlying evidence) were different. In the report and recommendation, the hearing examiner expressly recognized the `fundamental difference between the presentations in Van Dyke and those now before the Board are the innovations in theories of possible relief" (Joint Appendix, D-7). (emphasis added). Regardless of Relators' legal theories, the issue raised by both Relators and Ms. Van Dyke is whether individuals who were employed by the Private Nonprofit Defender after it "was no longer a county agency" were public employees. In Van Dyke, this Court determined that they were not. Relators cannot avoid the preclusive effect of Van Dyke simply by raising new legal theories or arguments. See Hirt v. Hirt (9th Dist.), 2006-Ohio-2851, at 14 (precluding party from relitigating an issue "by raising new arguments"). In addition, Relators' reliance on State ex rel. Moss v. Ohio State Highway Patrol Ret. Sys., 97 Ohio St.3d 198, 2002-Ohio-5806 is misplaced. In Moss, the retirement board refused to consider an application for disability benefits because the applicant was no longer employed by the State Highway Patrol. Those facts are not similar to the facts here. OPERS did not refuse to consider Relators' request for a determination as to their eligibility for OPERS membership. OPERS, through its staff and the Board, considered Relators' request and, after determining that Relators were similarly situated to Ms. Van Dyke, applied this Court's decision in Van Dyke and issued its decision denying Relators' request for OPERS membership. Thus, the Board not only considered Relators' claims, but decided that Relators' claims were without merit. 5

12 While OPERS agrees with Relators that membership in OPERS is compulsory for all public employees and that neither a public employee nor a public employer can waive membership in OPERS (except as authorized by Chapter 145 of the Revised Code), those are not the facts of this case. Relators were not hired by a public employer and did not contribute to OPERS for their service with the Private Nonprofit Defender. Still, Relators were permitted to make a request for a determination from OPERS as to their eligibility for OPERS membership and service credit. Pursuant to the express authority granted to the Board, it considered Relators' claims and ultimately determined that Relator' were not public employees and were not eligible for OPERS membership and service credit. The Board's application of this Court's decision in Van Dyke to Relators' claims complied with the obligations imposed on the Board by R.C (A)(4) and was not an abuse of discretion. Appellant-Cross Appellee Public Employees Retirement Board Proposition of Law No. 2: A proceeding of a public retirement system is quasi-judicial in nature where the parties are given notice, a hearing and the opportunity to present evidence. Relators do not dispute that a proceeding is quasi-judicial in nature where "notice, a hearing, and an opportunity for the introduction of evidence" are permitted. Superior's Brand Meats, Inc. v. Lindley (1980), 62 Ohio St.2d 133, 135 (citing State ex rel. Republic Steel Corp. v. Ohio Civil Rights Comm. (1975), 44 Ohio St.2d 178). Nonetheless, Relators continue to challenge the process whereby OPERS allows individuals to request a determination as to their eligibility for OPERS membership and service credit. Relators' arguments are without merit and must be rejected by this Court. Relators expressly acknowledge that, in addition to three levels of staff review, individuals seeking a determination from OPERS as to their eligibility for OPERS are given the opportunity for an evidentiary hearing before a hearing examiner and that "the parties are given 6

13 notice, may be represented by counsel and present witness testimony and any form of documentation" prior to the Board's decision on their claim. (Relators' Brief, p.37). This statement alone is enough to satisfy the requirements for a quasi-judicial proceeding - notice, a hearing and the ability to introduce evidence. See Superior's Brand Meats, 62 Ohio St.2d at 135. Despite Relators' own admission that they were provided with notice, a hearing and the opportunity to submit evidence, they continue to argue that the membership determination process is not quasi-judicial in nature. Relators' allegations that the OPERS membership determination process is "more akin to an investigation" than a quasi-judicial proceeding are baseless and must be rejected by this Court. (Relators' Brief, p.38). This Court expressly acknowledged the Board's status as an administrative agency in Mallory, 82 Ohio St.3d 235, 240. ("It is true that the board, like other administrative agencies, lacks jurisdiction to rule on the constitutional validity of statutes."). Further, the hearing examiner advised the parties at the evidentiary hearing that he considered the proceeding analogous to an administrative hearing under Chapter 119 of the Ohio Revised Code and conducted the hearing in such a fashion. (Joint Supp., Vol. 3, 731). The record clearly demonstrates that, following the appeal of the senior staff determination, the parties submitted evidence and briefs in support of their respective positions, were permitted to make objections throughout the course of the proceeding, and those objections were ruled upon by the hearing examiner. (Joint Supp., Vol. 3, ;R ). In short, the proceeding was conducted in an adversarial and quasi-judicial manner typical of administrative proceedings. Relators also argue that the ability to introduce witnesses is "illusory" because of the lack of compulsory process to compel the attendance of witnesses at the evidentiary hearing, particularly where affidavits were submitted by the Franklin County Defendants but the affrants 7

14 did not attend the hearing. (Relators' Brief, P. 37). But Relators' argument is based on a "strict application of the judicial model," which does not apply to administrative hearings and is not required for a quasi-judicial proceeding. See Doyle v. Ohio Bureau of Motor Vehicles (1990), 51 Ohio St.3d 46, 51 ("[T]his case involves an administrative proceeding wherein procedural due process does not and cannot require strict application of the judicial model."). In addition, Relators incorrectly state that the parties were not permitted to take depositions. OPERS has often allowed parties to depose witnesses prior to an evidentiary hearing and has permitted the parties to introduce transcripts of the deposition at the evidentiary hearing. Relators have not pointed to anything in the record that would support their position that OPERS would not permit the parties to take depositions. Indeed, Relators' counsel indicated only that "I think I requested once from Mr. Soulas long before [Hearing Examiner McNeil's] involvement in this case that I would like to depose some of those people but I was never given the opportunity." (R., Vol. 4, 750). Relators failed to either formally request the depositions of the affiants or failed to notify the hearing examiner of their difficulty in securing the depositions of the witnesses prior to the evidentiary hearing. Nonetheless, the record clearly demonstrates that both parties were given ample opportunity to submit evidence in support of their respective positions. This is demonstrated by the fact that the record in this case is over 5,000 pages. The record clearly establishes (and Relators have conceded) that they were provided with notice, a hearing and an opportunity to submit extensive evidence in support of their claims for OPERS membership and service credit. The Board provided Relators with three levels of staff review, an evidentiary hearing and a personal appearance before the Board. So, the membership determination process provided more than just notice, a hearing and an opportunity to submit evidence. The manner in which OPERS conducts its process for determining whether an 8

15 individual is a public employee and, therefore, eligible for OPERS membership and service credit, is clearly quasi-judicial in nature and therefore the Board's application of issue preclusion was proper. Appellant-Cross Appellee Public Employees Retirement Board Proposition of Law No. 3: Individuals making a request for a determination that they are public employees for their employment with the same employer and for the same period of time seek the uniformly applicable result of OPERS membership and service credit and not individually tailored reltef. The Court of Appeals rejected this Court's decision in Brown v. City of Dayton (2000), 89 Ohio St.3d 245, 2000-Ohio-148 and relied primarily on O Nesti v. DeBartolo Realty Corp., 113 Ohio St.3d 59, 2007-Ohio-1102 to conclude that OPERS had abused its discretion by applying issue preclusion to deny Relators' claims for OPERS membership. In O'Nesti, this Court found that the offensive use of res judicata is generally disfavored. O'Nesti, 2007-Ohio- 1102, 14. The Court of Appeals' and Relators' reliance on O'Nesti, as discussed more fully below, is misplaced as O'Nesti dealt with the offensive use of claim preclusion and Relators in the present case are not seeking individually tailored results As OPERS set forth in its First Brief, Relators are in privity with Ms. Van Dyke and Relators' attempts to distinguish this Court's decision in Brown v. City of Dayton (2000), 89 Ohio St.3d 245, 2000-Ohio-148 are without merit and must be rejected. In Brown, this Court determined that the concept of privity in the res judicata context is "amorphous" and found that parties are in privity when they share "a mutuality of interest, including an identity of desired result." Brown, 89 Ohio St.3d at 248 (finding privity amongst otherwise unrelated parties where all sought a determination regarding the validity of an ordinance); see also Nye v. State of Ohio Bd. ofexaminers ofarchitects (10th Dist.), 165 Ohio App.3d 502, 2006-Ohio-948, 19 (fmding 9

16 that the "Board had sufficient mutuality of interest to be deemed in privity...for the purpose of applying collateral estoppel"). Applying the broad definition as used by this Court, it is clear that "the relationship between [Relators and Ms. Van Dyke] is close enough to invoke the doctrine [of res judicata]," because Relators shared `a mutuality of interest, including an identity of desired result,"' with Ms. Van Dyke. See Kirkhart v. Keiper (2004), 101 Ohio St.3d 377, 379 (quoting Brown, 89 Ohio St.3d at 248). Further, Relators share a mutuality of interest with Ms. Van Dyke because Relators "would have been bound by [this Court's decision in Van Dyke] had the result been the opposite." O'Nesti v. DeBartolo Realty Corp., 113 Ohio St.3d 59, 2007-Ohio-1102, 9; (Relators' Supp. 41, p. 247, R ). Relators' acknowledge that they were each hired and employed by the FCPDO after the office was incorporated as a nonprofit entity on January 1, 1985, were not treated as public employees for OPERS purposes, and each sought a determination that they were eligible for OPERS membership and service credit for this service. These are the same facts as those in Van Dyke. In addition, as OPERS set forth in its First Brief, the fact that Ms. Van Dyke would have been member of Relators' proposed class in this case further establishes that Relators and Ms. Van Dyke shared a "mutuality of interest" and "identity of desired result." See Howland v. Purdue Phara L.P., 104 Ohio St.3d 584, 2004-Ohio-6552, 18 (requiring "questions of law or fact common to the class" and that "claims or defenses of the representative parties are typical of the claims or defenses of the class" for class certification). Relators, relying on this Court's decision in O'Nesti, claim that they "seek individually tailored judgments for the differing pension benefits and amounts due to them as members of OPERS." (Relators Brief, 28). However, the facts in O'Nesti are clearly distinguishable from the facts of this case. In O'Nesti, the employer offered a stock incentive plan for some of its 10

17 employees which would allow those select employees to receive a varying number of stock shares if those employees met certain annual company goals. O'Nesti, 2007-Ohio-1102 at 2. Thus, not all employees were eligible for these additional stock shares and those who were eligible received different stock incentives pursuant to their own individual employment contracts and goals. This Court held that "plaintiffs who are employees of the same employer and who have each signed an employment-related contract with the employer are not in privity for the purpose of claim preclusion if each employee is entitled to different benefits under the contract. " Id. at 12. Thus, this Court's statement that "[t]he relationship between co-employees subject to the same employment related contract, without more, does not establish privity" applies to situations where the individuals are entitled to different benefits under an employment contract. Again, those are not the facts of this case. OPERS' benefits are not governed by individual employment contracts. Retirement benefits under a public pension plan are governed exclusively by statutory criteria that require uniformity in application.3 Thus, Relators have not sought "personally tailored relief to fit their unique circumstance or factual situation." See Brown, 89 Ohio St.3d at 248. In fact, they seek exactly the same relief that was sought by Ms. Van Dyke. Like Ms. Van Dyke, Relators seek the same general result: a fmding that employees hired by the Private Nonprofit Defender after its incorporation as a nonprofit corporation on January 1, 1985 are public employees entitled to OPERS membership and service credit as provided for in Chapter 145 of the Ohio Revised Code. Id at 248 (explaining that the plaintiffs in the current action were seeking the same "general disallowance of the Ordinance" as the plaintiffs in the 3 Had the OPERS Board determined that the Relators were OPERS members for their service with the Private Nonprofit Defender, the Relators would need to meet the same eligibility requirements as other OPERS members, except those members with law enforcement service, to receive a refund (R.C ), to apply for disability benefits (R.C ) or to apply for age and service retirement (R.C ). 11

18 prior action). In fact, had this Court determined that Ms. Van Dyke was a public employee eligible for OPERS membership for her service with the Private Nonprofit Defender, that decision would have been uniformly applied to Relators and this matter would never have been brought to the OPERS Board or subsequently litigated. See Davis, 2005-Ohio-5339 at 35, 38. Relators cannot relitigate the status of the Private Nonprofit Defender as this Court has already determined that the Private Nonprofit Defender was a private employer who had contracted to take over what was previously a public function for the period of January 1, 1985 to December 31, To hold otherwise could lead to inconsistent results (i.e., a decision directly contrary to this Court's decision in Van Dyke). In addition, allowing Relators to relitigate the post-incorporation status of the Private Nonprofit Defender "would be to allow the [Private Nonprofit Defender] to come under constant attack simply by replenishing the ranks of plaintiffs" and would interfere with OPERS' ability to uniformly administer its retirement plan(s). Brown, 89 Ohio St.3d at 248. C. Relators-Appellants raise no new arguments in support of their cross-appeal. In support of their cross-appeal, Relators raise two constitutional challenges that are similar, if not identical to their arguments regarding the quasi-judicial nature of the membership determination proceeding and Relators' arguments that they are not in privity with Ms. Van Dyke. It is well established that when an action in mandamus presents both a claim of clear legal entitlement to the requested relief as well as an argument that the Board's process denied the relator due process of law, the "constitutional question will not be determined" when the "case can be resolved upon other grounds." Kinsey v. Bd. of Trustees of the Police and Firemen's Disability & Pension Fund of Ohio ( 1990), 49 Ohio St.3d 224, 225 ("This case can be resolved on the `some evidence' rule and, therefore, we find it unnecessary to reach the constitutional 12

19 issue of whether appellant was denied due process of law..."). Therefore, because there is some evidence (including this Court's decision in Van Dyke) supporting the Board's decision that Relators are not public employees eligible for OPERS membership and service credit for their service with the Private Nonprofit Defender during the period of January 1, 1985 to December 31, 1998, this Court need not consider their due process arguments. Nonetheless, the record clearly demonstrates that OPERS' membership determination proceeding complies with due process requirements. Cross Appellee-Appellant Public Employees Retirement Board Proposition of Law No. 1: The Board's decision to deny Relators' claims for OPERS membership because they are similarly situated to Ms. Van Dyke is supported by prior precedent of this Court and general principle of stare decisis and is not a constitutional violation ofprocedural due process. In their first proposition of law in support of their cross appeal, Relators allege that their interests were not adequately represented by Ms. Van Dyke and rely primarily upon this Court's decision in Goodson v. McDonough Power Equip., Inc. (1983), 2 Ohio St.3d 193. Relators' reliance on Goodson for this proposition is misplaced as this Court has more recently resolved the concept of privity and adequate representation, finding that "mutuality of interest, including identity of desired result" satisfies the privity requirement. O'Nesti, 2007-Ohio-1102, 9 (holding that "mutuality of interest, including an identity of desired result, might also support a finding of privity") (internal quotations omitted); Brown, 89 Ohio St.3d at 248 (holding that "mutuality of interest, including identity of desired result" satisfies privity); See also Grant Fritzsche Enters. v. Fritzsche (12th Dist. 1995), 107 Ohio App.3d 23, 25 (affrming application of issue preclusion where party to prior suit adequately represented party in subsequent suit because of a shared "identity of interest"). As set forth in detail in OPERS' First Brief and in its 13

20 Proposition of Law No. 3 above, Relators are in privity with Ms. Van Dyke because they share a "mutuality of interest" and "identity of desired result " Moreover, Relators' due process rights are not violated by the application of issue preclusion. The concept of issue preclusion depends on a balancing of judicial economy and due process interests. See Dolce v. Lawrence (1999), 1999 Ohio App. Lexis 4650, at *3 ("Collateral estoppel balances due process concerns against judicial efficiency by estopping a party, or a person in privity with him, from re-litigating an issue which has already been determined by a court."), citing Goodson, 2 Ohio St.3d at 201. The requirements for applying issue preclusion promote this balance by protecting the due process rights of litigants while promoting judicial economy through the appropriate application of issue preclusion. Id. (protecting due process rights of litigants by requiring that the same issue be decided in the prior action); Bentley v. Grange Mut. Casualty Ins. Co. (10th Dist. 1997), 119 Ohio App.3d 93, 100 (protecting due process rights of litigants by requiring that the person bound by issue preclusion be in privity with the party to the prior action). Because the prerequisites for issue preclusion ensure the protection of due process rights and because those prerequisites are met here, Relator's due process argument fails. Cross Appellee-Appellant Public Employees Retirement Board Proposition of Law No. 2: A public retirement system complies with procedural due process where the parties to its proceeding are given notice and an opportunity to be heard. While Relators have a right to due process with regard to their request for a determination relative to their status as public employees, they do not have a right to dictate what that process will entail. Due process is a "flexible concept" that conforms to the requirements of a particular situation. See LTV Steel Co. v. Indus. Comm. Of Ohio (10th Dist. 2000), 140 Ohio App.3d 680, ("[D]ue process is a flexible concept and calls for such procedural safeguards as the 14

21 particular situation demands."). In the context of an administrative hearing, this Court has concluded that "due process does not and cannot require strict application of the judicial model " Doyle, 51 Ohio St.3d, at 51. An administrative proceeding must only satisfy the basic requirements of notice and an opportunity to be heard. Korn v. Ohio St. Med. Board (10th Dist. 1988), 61 Ohio App.3d 377, 684 ("The fundamental requirement of procedural due process is notice and hearing, that is, an opportunity to be heard.") Applying this flexible standard of "notice and an opportunity to be heard" to administrative proceedings before a public retirement system board, the Tenth District Court of Appeals has held that there is no right to an evidentiary hearing, or even a personal appearance before the board. State ex rel. Rock v. Sch. Employees Ret. Bd. (Sept. 30, 2004), 10th Dist. No. 99AP-1474, 2004-Ohio-5268, at 20-21, 30; See also Marion Ob/Gyn, Inc. v. State Med. Bd. of Ohio (10th Dist. 2000), 137 Ohio App.3d 522, 534 ("Typically, hearings need not be elaborate, and in an administrative action, a full evidentiary hearing is generally not required."). The record clearly establishes that Relators received far more procedural safeguards than due process requires. Upon Relators' appeal of the senior staff determination, the Board appointed an independent hearing examiner pursuant to O.A.C After Relators requested the removal of the first appointed hearing examiner, the Board appointed a second independent hearing examiner to hear Relators' appeal. (Joint Supp., Vol. 2, ; R ). Prior to the evidentiary hearing, the hearing examiner, in an effort "to avoid undue surprise," prepared a journal entry setting forth a schedule for the exchange of witness lists, expert reports, and all exhibits that the parties intended to rely upon. Id.; compare Bell v. State Med. Bd of Ohio (June 13, 1986), 6th Dist. No. L , 1986 Ohio App. Lexis 7131 (finding that due process does not require parties to submit witness lists in advance of the hearing). 15

22 In addition to Relators' pre-hearing briefs and motions, Relators were provided an extensive evidentiary hearing as provided for by O.A.C At the evidentiary hearing, all parties were permitted to submit evidence in the form of witness testimony and any fonn of documentation, and all parties were permitted to be represented by counsel. O.A.C Relators subniitted the vast majority of the documents in the over 5,000 page record in the case, submitted pre-hearing and post-hearing briefs, and made objections before, during and after the evidentiary hearing. Following the evidentiary hearing, the hearing examiner issued a report and recommendation and Relators were given the opportunity to submit written objections prior to the Board's consideration of the report and recommendation. See O.A.C (C)(1)(c). After availing themselves of the opportunity to file objections, Relators then requested and were permitted to make a personal appearance before the Board. Relators' counsel not only addressed the Board during this personal appearance, but also submitted additional evidence. (R., Vol 8,.5162) Only after all this process was afforded to Relators did the Board make its final decision to deny Relators' claims for OPERS membership. In light of all of this, Relators arguments that they were "deprived of a meaningful opportunity to be heard" and unable to make a complete record are more than a bit disingenuous. Relators also argue that the lack of compulsory process to compel the attendance of witnesses at the evidentiary hearing violates their due process rights, particularly in situations where affidavits are submitted but the affiants do not attend the hearing. (Relators' Brief, 43-44). These arguments are without merit and must be rejected. OPERS does not dispute that Chapter 145 of the Revised Code does not authorize the Board or its appointed hearing examiner to issue subpoenas. However, as stated previously administrative hearings do not require "strict application of the judicial model" and the ability to subpoena witnesses is not required for due 16

23 process. See Doyle, 51 Ohio St.3d at 51. Regardless, because there is no statutory constitutional due process right to an evidentiary hearing, the inability to serve subpoenas upon potential witnesses to ensure attendance at such a hearing cannot serve as the basis for a due process violation. Moreover, the Tenth District Court of Appeals has previously rejected a similar argument. In LTV Steel, the Court of Appeals argued that not having the opportunity to crossexamine the authors of written reports submitted as evidence in the administrative hearing violated its due process rights. LTV Steel, 140 Ohio App.3d at 689. The Court determined, however, that in the context of an administrative proceeding, due process did not guarantee a right to cross-examine witnesses who had submitted written reports but who did not testify at the hearing. Id. at Recognizing that the appellant had ample opportunities to submit its own evidence to the contrary, the court concluded that due process was satisfied. Id. at 690 (finding that "although cross-examination in deposition could potentially result in a more complete evidentiary record, [the requesting party] ha[d] an array of other ways to impeach [the written] report" such that due process was satisfied); See also E.B. v. T.J. (8th Dist.), 2006-Ohio- 441, (holding that in a civil action seeking to establish paternity, the claimant was not denied due process where the claimant was denied the right to cross-examine witnesses at the administrative and trial court hearings). Relators were provided ample opportunity to submit their own evidence and witnesses to rebut the testimony provided by the affiants. Relators attempt to avoid this established authority by citing inapplicable cases. For example, they rely upon a case that upheld the denial of a defendant's ability to cross-examine an affiant who filed an affidavit as part of the process to initiate a garnishment proceeding against the defendant. Fifth Third Bank of Columbus v. Bowman (10th Dist.), 1990 Ohio App. Lexis

24 (finding no error where the party was denied the right to call affiant as witness and crossexamine her). Even in that judicial proceeding, the court found due process was not violated. Similarly, though Relators could have conducted pre-hearing depositions of the parties, they did not have a constitutional right to cross-exanrine the affiants at the evidentiary hearing because due process does not require such cross-examination in the administrative context. See LTV Steel, 140 Ohio App.3d at Thus, the OPERS proceeding clearly complies with due process requirements and Relators' arguments to the contrary must be rejected. III. CONCLUSION For the above reasons, this Court should reverse the decision of the court of appeals below finding that the Board improperly applied issue preclusion to bar Relators' claims for OPERS membership and should deny Relators' request for a writ of mandamus. Respectfully submitted, NANCY H. ROGERS Attorney General of Ohio LAURA ETREBIA PARSONS ( ) Assistant Attorney General *Counsel ofrecord 30 East Broad Street, 26th Floor Columbus, Ohio (614) (866) fax lparsons@ag.state.oh.us Counsel for Appellant/Cross Appellee Public Employees Retirement Board 18

25 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Merit Brief of Respondent-Appellant Public Employees Retirement Board was served by U.S. mail this KY"day of July, 2008 upon the following counsel: Nick A. Soulas, Jr., Esq. James E. Melle, Esq. Assistant Prosecuting Attorney Buckley King LPA 373 South High Street, 13th Floor One Columbus, Suite 1300 Columbus, OH West Broad Street Columbus, Ohio Teri G. Rasmussen, Esq. Lane Alton & Horst, LLC Two Miranova Place, Suite 500 Columbus, OH Assistant Attorney General 19