jul 2 0 ta11 CLERK OF COURT SUPREME COURT OFOHIO On Appeal from the Fairfield County Court of Appeals Fifth Appellate District

Transcription

1 ORIGINAL IN THE SUPREME COURT OF OHIO PAUL LANE Relator-Appellant, VS.. Case No CITY OF PICKERINGTON Personnel Appeals Board and CITY OF PICKERINGTON, On Appeal from the Fairfield County Court of Appeals Fifth Appellate District Respondent-Appellees. MERIT BRIEF OF RELATOR-APPELLANT, PAUL LANE Michael A. Moses ( ) COUNSEL OF RECORD Moses Law Offices, L.L.C. 100 East Broad St.-Ste Columbus, Ohio (614) Fax: (614) COUNSEL FOR RELATOR-APPELLANT, PAUL LANE Phillip K. Hartmann ( ) Paul L. Bittner ( ) Aaron L. Granger ( ) COUNSEL OF RECORD Schottenstein, Zox & Dunn 250 West Street Columbus, Ohio (614) Fax (614) Em-aii: COUNSEL FOR RESPONDENT- APPELLEES, CITY OF PICKERINGTON, CITY PERSONNEL APPEALS BOARD jul 2 0 ta11 CLERK OF COURT SUPREME COURT OFOHIO

2 TABLE OF CONTENTS TABLE OF AUTHORITIES iii STATEMENT OF FACTS...1 ARGUMENT Proposition of Law No. I...4 THE LOWER COURT IMPROPERLY RELIED ON O.R.C. SEC IN DISMISSING APPELLANT'S COMPLAINT FOR FAILURE TO PURSUE AN ADEQUATE REMEDY. Proposition of Law No. II...9 DUE PROCESS REQUIRES THAT CITY EMPLOYEES IN THE CLASSIFIED CIVIL SERVICE APPEALING THEIR REMOVAL FROM EMPLOYMENT MUST RECEIVE NOTICE FROM A CIVIL SERVICE COMMISSION IN ORDER TO TRIGGER THEIR RIGHT TO APPEAL UNDER O.R.C. SEC Proposition of Law No. III...11 CIVIL SERVICE COMMISSIONS MAY NOT CIRCUMVENT A PARTY'S RIGHT TO APPEAL BY FAILING TO JOURNALIZE A DECISION, ENTER A FINAL ORDER, OR GIVE NOTICE OF A DECISION OR FINAL ORDER DETERMINING THE PARTY'S RIGHTS. A. The Provisions Of O.R.C. Chapter 119 With Respect To Administrative Appeals Are Strictly Construed...11 B. The Administrative Agency Is Required to Strictly Comply With the Elements of O.R.C. Sec in Issuance of Its Notification to the Party Affected By Its Order or Determination of Rights, Duties, Privileges, Benefits or Legal Relationship...12 C. The-Letter Fro,:r;Zespasid ents'la is'-direeta: Does Nat Constitute a Finding, Decision, Order or Adjudication Within the Meaning Of O.R.C. Secs (D) And (H)...13 D. Appellee Personnel Appeals Board Did Not Issue An Ordcr From Which Appeal Could Be Taken Under O.R.C. Sec i

3 CONCLUSION CERTIFICATE OF SERVICE APPENDIX Notice of Appeal to the Ohio Supreme Court (May 31, 2011)...1 Opinion of the Fairfield County Court of Appeals (April 13, 2011) Judgment Entry of the Fairfield County Court of Appeals (April 13, 2011) ii

4 TABLE OF AUTHORITIES Cases Cleveland Bd. of Edn. v. Loudermill (1985), 470 U.S. 532, , 105 S.Ct. 1487, 1491, 84 L.Ed.2d ,.10 Cleveland Elec. Illum. Co. v. Lake Cty. Bd. of Revision (2002), 96 Ohio St.3d 165, 2002-Ohio-4033, 772 N.E.2d , 12 Fairley v. State Personnel Bd. of Review (1986), 29 Ohio App.3d 113, 115, 29 OBR 129, 131, 504 N.E.2d 75, Graul v. State Personnel Board of Review (1962), 117 Ohio App. 108, 191 N.E.2d , 13 Grimes v. Cleveland (C.P.1969), 17 Ohio Misc. 193, 243 N.E.2d 777 [46 0.O.2d 279], at , 243 N.E.2d Hughes v. Ohio Dept. of Commerce (2007), 114 Ohio St.3d 47, 2007-Ohio , 12, 14 M.J. Kelley Co. v. Cleveland (1972), 32 Ohio St.2d Rappach v. Liberty Twp. Civ. Serv. Comm Ohio-3088, 05-LW-2627 (OHCA11)...7 Schenley v. Kauth (1953), 160 Ohio St. 109, 113 N.E.2d 625 [ ]...11 State ex rel. Alford v. Willoughby (1979), 58 Ohio St.2d 221, 390 N.E.2d State ex rel. Braxton, v. Nichols (2010), 2010-Ohio-681 (OHCA8)...8 State ex rel. Buckman v. Munson (1943), 141 Ohio St. 319, 48 N.E.2d State ex rel. Hanley v. Roberts, 17 Ohio St.3d 1, 476 N.E.2d 1019 ( 1985)...11 State ex rel. Henderson, v. Maple Heights Civil Service Commission. (1980), 63 Ohio St.2d 39, 406 N.E.2d , 9 State ex rel. Hipp v. N. Canton (1996), 75 Ohio St.3d 221, 222, 1996-Ohio iii

5 State ex rel. Kendrick v. Masheter (1964), 176 Ohio St. 232, 235, 199 N.E.2d , 13 State ex rel. PIA Psychiatric Hospitals, Inc. v. Ohio Certificate of Need Review Bd. (1991), 60 Ohio St.3d 11, 73 N.E.2d State ex rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d 141, 228 N.E.2d , 5 State ex rel. Rieke v. Hausrod, 59 Ohio St.2d 48, 391 N.E.2d 736 (1979)...9 Sun Refining Marketing Co. v. Brennan (1987), 31 Ohio St.3d 306, 511 N.E.2d , 10, 12, 13, 14 Yarosh v. Becane (1980), 63 Ohio St.2d 5, 406 N.E.2d Statutes O.R.C. Chap , 7, 9, 10, 11, 14,15 O.R.C. Sec , 13 O.R.C. Sec , 8, 10, 11, 12, 13, 14 O.R.C. Chap , 3, 7 O.R.C. Sec (A)...5 O.R.C. Sec O.R.C. Sec , 7, 8, 9, 15 O.R.C. Sec (B)...6, 8 O.R.C. Sec (A)...5, 8 O.R.C. Sec , 4, 5, 8 Other Authorities Article XV, Section 10, Ohio Constitution...3 Pickerington City Charter, Section Section 9.02(7), Codified Ordinances of Pickerington, Ohio...3 Section 9.03, Codified Ordinances of Pickerington, Ohio...1, 3 iv

6 STATEMENT OF FACTS Relator-Appellant, Paul Lane (hereinafter, referred to as "Appellant" or "Mr. Lane"), was a duly appointed employee of the City of Pickerington, Ohio, from August 18, 1999, until November 5, Initially, Mr. Lane was hired as full-time Construction Inspection Supervisor, a position in the classified civil service. On November 7, 2005, Respondents promoted Mr. Lane to the full-time position of Inspections Administrator. (Supp. 6, Tr. 7, Exh. 18.) Respondent-Appellee, City of Pickerington (hereinafter, referred to as "Appellee" or "City"), is a political subdivision operating under Title 3 of the Ohio Revised Code to administer the municipal government for the residents of the City of Pickerington, Ohio under a home-rule charter form of government, and is the appointing authority for employees of the City with the power to employ and discharge employees under O.R.C. Chapter 124, with its administrative offices in Pickerington, Ohio. The City Charter of the City of Pickerington, Ohio, contains a procedure for appeals "...whenever any official or employee in the competitive service feels aggrieved by any action of the City Manager or is suspended, reduced, or removed and requests such hearing..." through the Personnel Appeals Board, under Sec of the Ordinances of the City of Pickerington. (Supp. 1, 5, 6, Exh. 1.) Prior to his appointment as a full-time Inspections Administrator on November 7, 2005, Mr. Lane was a tenured employee under O.R.C. Chapter 124 as a full-time Construction Inspection Supervisor, with rights to appeal any disciplinary action greater than three (3) days to the Personnel Appeals Board under Sec of the Ordinances of the City of Pickerington, subject to the statutory provisions of O.R.C. Chapter 124 and administrative rules promulgated by the City of Pickerington. (Supp. 5; Supp. 6, Tr , Exh. 18.) At the time that Mr. Lane was promoted to Inspections Administrator, neither Ms. Linda Fersch, Personnel Director, or then-city Manager, Ms. Joyce Gilliland, stated or explained to Mr. Lane that he was waiving or giving up any legal rights as a 1

7 classified employee or that he was becoming an unclassified employee by virtue of said promotion. (Supp. 6, Tr , Exh. 18.) Numerous documents generated by the City during Mr. Lane's employment, such as Employee Maintenance Printouts, Employee Allocation Lists, Employee Pay Plan & Authorized Strength, and Position Analysis Questionnaires, designated Mr. Lane's Inspection Administrator position as "C" or "Classified". (Supp. 6, Exhs. 12, 13, 14, 15, 16, and 17.) Ms. Ferschtestified in her deposition that references to Mr. Lane's position in these documents as classified were "typographical errors." (Supp. 6, Tr , ) The City's management structure for its Building Department was restricted by a contract with a Donald Phillips, a licensed engineer, who directed the functional and technical operations of the Building Department's inspections and monitoring of compliance with State and City building codes, as opposed to Mr. Lane's office managerial duties, including processing of purchase orders, liaison duties and administrative matters relating to Building Department staff. (Supp. 6, Exhs. 4, 5.) During Mr. Lane's employment with the City of Pickerington, Chief Building Official Phillips was contracted to monitor the technical and functional operations of the Building Department, as Mr. Lane did not possess the technical skills or certification by the Ohio Board of Building Standards to enforce building codes or be responsible for overall administration of the certified building department, unlike Lane's predecessor, Leonard Lewis, or his successor, Chet Hopper. (Supp. 6, Tr , , Exhs. 4, 5.) After Mr. Lane was terminated, the duties he and Mr. Phillips perfornied were relegated again to one individual, Chet Hopper. (Supp. 6, Tr , 98-99, , ) On November 5, 2009, Respondent's Interim City Manager, Michael D. Taylor, issued a determination terminating Mr. Lane from his employment with the City of Pickerington. (Supp. 2.) On November 17, 2009, Mr. Lane timely submitted a request for hearing before Respondent 2

8 Personnel Appeals Board pursuant to Sec (Supp. 5.) On December 1, 2009, attorney Phillip Hartmann, employed as Respondents' Law Director, sent correspondence to Mr. Lane, indicating that he was an unclassified employee and that the Personnel Appeals Board had no jurisdiction to hear his appeal. (Supp. 4.) After Mr. Lane submitted a request for a hearing on his removal before the Personnel Appeals Board, that Board failed to conduct any evidentiary hearing or any other proceeding regarding his employment on the basis that Respondents considered him to be exempt from the competitive service as a "director of a department" under Sec. 9.02(7), Codified Ordinances of City of Pickerington, Ohio. (Supp. 6, Tr ) Subsequently, on March 25, 2010, Mr. Lane filed a complaint for a writ of mandamus with the Fairfield County Court of Appeals, Fifth Appellate District, seeking that Respondent, City of Pickerington, be required to conduct a hearing and issue a determination on the merits of his appeal, reinstate him to the position of Inspections Administrator, issue him back pay and any other benefits owed by the Respondent in accordance with the provisions of O.R.C. Chapter 124 and Article XV, Section 10 of the Ohio Constitution. Upon summary judgment motions and opposing memoranda supported by verified affidavits and deposition transcripts, the Court of Appeals issued a decision on April 13, 2011, denying the request for a writ of mandamus, on the grounds that the Appellant failed to avail himself of an adequate remedy, appeal through O.R.C. Sec See Appx On April 25, 2011, a timely motion to certify the decision of the Court of Appeals as in conflict was filed with the Fairfield County Court of Appeals, Fifth Appellate District. (See Relator-Appellant's Notice of Pending Motion to Certify Conflict.) On May 4, 2011, the Respondent-Appellees filed a memorandum in opposition to the motion to certify. On May 16, 2011, Relator-Appellant filed a reply to the memorandum in opposition. On May 31, 2011, the Relator-Appellant timely filed a 3

9 Notice of Appeal with the Court. See Appendix 1. The motion to certify as in conflict was denied by the Fifth District Court of Appeals on June 7, On June 10, 2011, the record of proceedings was transmitted by the Fifth District Court of Appeals to this Court. ARGUMENT Proposition of Law No. I THE LOWER COURT IMPROPERLY RELIED ON O.R.C. SEC IN DISMISSING APPELLANT'S COMPLAINT FOR FAILURE TO PURSUE AN ADEQUATE REMEDY. This appeal arose out of the discharge of Relator-Appellant, Paul Lane. On November 5, 2009, Mr. Lane was issued a notice of termination from his classified civil service employment as an Inspections Administrator 1 with the City of Pickerington. He timely requested a hearing before the Personnel Appeals Board to contest his removal, but the appeal required under the City Charter was never provided, nor was any decision or notice issued by the Board regarding the appeal. On December 1, 2009, Pickerington City Law Director Phillip K. Hartmann sent correspondence to Mr. Lane containing the opinion that the Board was not obligated to provide him with an appeal because of his alleged unclassified status. No evidentiary hearing on the merits of Mr. Lane's termination was conducted by the Personnel Appeals Board, nor did it issue any ruling, decision or communication of any kind, even as to its jurisdiction or purported lack thereof regarding Mr. Lane's request for a hearing. A complaint in mandamus states a claim if it alleges the existence of a legal duty and the want of an adequate remedy at law with sufficient particularity so that the respondent is given reasonable notice of the claim asserted. State ex rel. PLA Psychiatric Hospitals, Inc. v. Ohio Certificate ofneed Review Bd., 60 Ohio St.3d 11, 73 N.E.2d 14 (Ohio 1991); State ex rel. Pressley v. 4

10 Indus. Comm. (1967), 11 Ohio St.2d 141, 228 N.E.2d 631. The Court of Appeals found "...the question of whether an adequate remedy in the ordinary course of law exists to be dispositive of the issue presented in this case," and that the Appellant "...has or had an adequate remedy at law by way of appeal to the Court of Common Pleas pursuant to R.C " See Opinion, Appx. 6. However, in ruling that an adequate remedy was available to Mr. Lane, the Court of Appeals' decision presupposes the existence of a final order appealable under law. The lower court's erroneous invocation of O.R.C. Sec as the source of the perceived adequate remedy is the flawed linchpin of the decision, and the basis upon which the lines of this appeal are drawn. O.R.C. Chapters 119 and 124 are the relevant statutes in an inquiry of whether the Appellant, a civil service employee, had an adequate remedy at law O.R.C. Sec (A) provides as follows: "`Civil service' includes all offices and positions of trust or employment in service of the state and in the service of the counties, cities, city health districts, general health districts, and city school districts of the state." O.R.C. Sec provides as follows; "No person shall be appointed, removed, transferred, laid off, suspended, reinstated, promoted or reduced as an officer or employee in the civil service, in any manner or by any means other than those prescribed in this chapter; and the rules of the director of administrative services or the municipal or civil service township civil service commission within their respective jurisdictions." O.R.C. Sec (A) grants a municipal civil service commission jurisdiction to hear appeals from removals of city employees in the classified civil service. It * * * Siic'nYniYn"lcipal i,rviiseivlce-coii?rnisssionshuli-pres --ibe, amend,-and enf3rf-f rules not inconsistent with this chapter for the classification of positions in the civil service of such city and city school district, and all the positions in the city health district; for examinations and resignations therefore; for appointments, promotions, removals, transfers, layoffs, suspensions, reductions, and reinstatements therein; and for standardizing positions and maintaining efficiency therein. The municipal civil service commission shall exercise all other powers and perform all other duties with respect to the civil service of such city, 5

11 city school district, and city health district, as prescribed in this chapter and conferred upon the director of administrative services and the state personnel board of review with respect to the civil service of the state; and all authority granted to the director and the board with respect to the service under their jurisdiction shall, except as otherwise provided by this chapter, be held to grant the same authority to the municipal civil service commission with respect to the service under its jurisdiction. The procedure applicable to reductions, suspensions, and removals, as provided for in section of the Revised Code, shall govern the civil service of cities. * * * " [Emphasis added] The Appellee Personnel Appeals Board failed to act in any manner on the Appellant's request for a hearing for review of his termination by the Personnel Appeals Board. Even if the Board determined that Mr. Lane was not classified, it should have issued a quasi-judicial determination to afford him the opportunity under the law to seek judicial review thereof. Clearly, O.R.C. Sec provides that the civil service commission-and not the law director--shall exercise all powers relating to the civil service for the respective cities. O.R.C. Sec (B) provides in pertinent part: In cases of removal or reduction in pay for disciplinary reasons, either the appointing authority or the officer or employee may appeal from the decision of the state personnel board of review or the commission, and any such appeal shall be to the court of common pleas of the county in which the appointing authority is located, or to the court of common pleas of Franklin county, as provided by section of the Revised Code. The city law director's opinion letter does not take the place of a decision or order issued by the Personnel Appeals Board, nor is such an action consistent with review of administrative determinations under O.R.C. Sec The absence of a decision cannot be challenged through appeal under any applicable law, since the duties and powers of the City of Pickerington Law Director defined in the City Charter do not authorize him to issue decisions or orders on behalf of the Personnel Appeals Board, only authorize him to (1) "...be the legal adviser and attorney and counsel for... all officials, boards, commissions, and departments; (give legal opinions in writing; (3) "...represent the Municipality in all litigations to which it may be a party..."; (4) perform such other 6

12 duties as may be assigned...;" (5) "...upon request prepare all contracts, bonds, and other instruments..." Pickerington City Charter, at Section (Supp. 5.) State, ex rel. Henderson, v. Maple Heights Civil Service Commission, et al. (1980), 63 Ohio St.2d 39, 406 N.E.2d 1105 is not analogous, as the Court of Appeals held, without any significant discussion, dismissing relator's action because "(r)elator has an adequate remedy at law." While the Court inhenderson, supra, did make reference to the procedure found in R.C , under which employee terminations may be appealed to the state personnel board of review or the appropriate civil service commission and, subsequently, to a common pleas court under O.R.C. Chapter 119, the underlying facts are distinguishable, as they did not involve a termination for disciplinary reasons. Instead, the case arose out of a municipal employer's refusal to approve a request by a non-resident, part-time bus-driver to continue employment after he assumed a full-time position in violation of the city's charter requiring residency as a condition of full-time employment. Henderson, supra, 63 Ohio St.2d. 40. Thus, the focus on the law director's letter to the Appellant regarding his termination on disciplinary grounds was misplaced, and the analysis of what may be appealed should begin with the response of the administrative agency in question, the Personnel Appeals Board. Its failure to act is not a final appealable order. Rappach v. Liberty Twp. Civ. Serv. Comm. (2005), 2005-Ohio-3088 (OHCA11)(failure to appoint employee as captain not final appealable order), citingm.j. Kelley Co. v. Cleveland (1972), 32 Ohio St.2d 150. Where a public official or entity fails to perform an action required under the law, the correct action to enforce the performance of that legal duty is mandamus. Cf. State ex rel. Hipp v. N. Canton (1996), 75 Ohio St.3d 221, 222,1996-Ohio-225 (" [m]andamus is an appropriate remedy in wrongful-denial-of-promotion cases"). The Appellee, Pickerington City Personnel Appeals Board, is a civil service commission with powers established under O.R.C. Chapter 124. Its adjudications regarding municipal employees are 7

13 appealable under O.R.C. Sec , not O.R.C. Sec See State ex rel. Braxton v. Nichols (2010), 2010-Ohio 681 (OHCA 8); O.R.C. Sec (B); O.R.C. Sec (A). O.R.C. Sec defines (A)" `Agency' includes all offices and positions of trust or employment in service of the state and in the service of the counties, cities, city health districts, general health districts, and city school districts of the state." O.R.C. Sec provides as follows: "No person shall be appointed, removed, transferred, laid off, suspended, reinstated, promoted or reduced as an officer or employee in the civil service, in any manner or by any means other than those prescribed in this chapter; and the rules of the director of administrative services or the municipal or civil service township civil service commission within their respective jurisdictions." "The most reasonable construction of the provision for finality of the decision by the board is to make the board's order final in the sense of being the highest or ultimate order in the agency..." Graul v. State PersonnelBoard ofreview (1962),117 Ohio App. 108, 191 N.E.2d 188; State ex rel. Kendrick v. Masheter (1964), 176 Ohio St. 232, 235, 199 N.E.2d 13. Clearly, a proper analysis of appealable orders in the context of a civil service commission does not contemplate the appeal of correspondence from a municipal law director. The "highest or ultimate order in the agency" regarding civil service matters, particularly, in the context of a disciplinary removal of a city employee would be an adjudication, order or finding by the relevant civil service commission, in this case, the Personnel Appeals Board. Absent such a decision, Mr. Lane had no action from which he could take appeal to seek further review of his termination. 8

14 Proposition of Law No. II DUE PROCESS REQUIRES THAT CITY EMPLOYEES IN THE CLASSIFIED CIVIL SERVICE APPEALING THEIR REMOVAL FROM EMPLOYMENT MUST RECEIVE NOTICE FROM A CIVIL SERVICE COMMISSION IN ORDER TO TRIGGER THEIR RIGHT TO APPEAL UNDER O.R.C. SEC The Court of Appeals' holding would deprive individuals whose substantial rights had been affected via a disciplinary action to file an appeal without a supporting record or other adjudicative materials upon which a reviewing court could make an effective review, and, clearly, contravenes the legislative intent behind O.R.C. Sec The Court of Appeals relied on St., ex rel. Henderson, v. Maple Heights Civil Service Commission, 63 Ohio St.2d 39, 406 N.E.2d 1105 (Ohio 1980), where the Court, in a per curiam decision, did not directly address due process concerns, Chapter 119's appeal procedure, or the issue of whether an attorney could, effectively, act in the stead of the civil service commission. Henderson, supra, was decided prior to this Court's decision in Sun Refining Marketing Co. v. Brennan (1987), 31 Ohio St.3d 306, 511 N.E.2d 112. Henderson, supra, was at variance with prior decisions, which held that review of proceedings by the civil service commission is fundamental to the civil service system. Yarosh v. Becane (1980), 63 Ohio St.2d 5, 406 N.E.2d 1355; St., ex rel. Alford v. Willoughby (1979), 58 Ohio St.2d N.E.2d 782; St., ex rel. Buckman v. Munson (1943), 141 Ohio St. 319, 48 N.E.2d 109; also, see St., ex rel. Rieke v. Hausrod, 59 Ohio St.2d 48, 391 N.E.2d 736 (Ohio 1979). The right of a classified civil service employee who has successfully completed a probationary period has been determined to be a significant property interest protected by the Federal and State Constitutions. See Fairley v. State Personnel Board of Review (1986), 29 Ohio App.3d 113, 504 N.E.2d 75. Quoting the language from the U. S. Supreme Court's decision in Cleveland 9

15 Bd. of Educ. v. Loudermill (1985), 470 U.S. 532, the Court affirmed the importance of a tenured employee's right to a hearing, admittedly in a different context, that of a pre-termination hearing. In O.R.C. Sec appeals, the Ohio Supreme Court has held that strict compliance with laws governing service of administrative agency orders is required, and, independent of due process concerns, jurisdictional requirements create a substantive basis for enforcing strict compliance with administrative procedures for appeal. Moreover, this Court has held that strict compliance with laws governing service of notice is necessary even when the affected employee's due process rights are not prejudiced. Hughes v. Ohio Dept. of Commerce (2007) 114 Ohio St.3d 47, 2007-Ohio The Court of Appeals' finding that the letter from Respondent-Appellees' law director was sufficient notice to trigger Mr. Lane's right of appeal and deviate from procedural requirements contravenes the holdings of this Court in Hughes; accord, Sun Refining & Marketing Co. v. Brennan (1987), 31 Ohio St.3d 306, 31 OBR 584, 511 N.E.2d 112; Cleveland Elec. Illum. Co. v. Lake Cty. Bd. of Revision, 96 Ohio St.3d 165, 2002-Ohio-4033, 772 N.E.2d In the Hughes opinion the Supreme Court specifically addressed the issue of due process. After relying on the Sun Refining case to establish that strict compliance was necessary to effectuate proper service, the Court wrote, "The agency argues that Sun Refining does not apply because the same due process concems do not exist since the agency did send a copy of its decision to Hughes... [However], we see no reason to depart from Sun Refining's holding". Id, 50. Thus, the Court expressly states that strict compliance is necessary to properly effectuate service of a removal order, even when the employee's due process rights are not prejudiced. Clearly, the requirement of an action by the Personnel Appeals Board itself is implicit under O.R.C. Chapters 119 and 124 as a prerequisite to review of the agency's action, and, thus, such procedural scheme affords the necessary due process protections to the affected party. 10

16 Proposition of Law No. III CIVIL SERVICE COMMISSIONS MAY NOT CIRCUMVENT A PARTY'S RIGHT TO APPEAL BY FAILING TO JOURNALIZE A DECISION, ENTERA FINAL ORDER, OR GIVE NOTICE OF A DECISION OR FINAL ORDER DETERMINING THE PARTY'S RIGHTS, AS REQUIRED BY O.R.C. SEC The decision of the Court of Appeals imposing a duty upon the Appellant to file an appeal to common pleas court rather than seek a writ of mandamus presumes that an appeal was possible to perfect. The correspondence from the Appellees' law director advising Appellant he was unclassified and not entitled to a hearing can in no way constitute an order or adjudication which triggers a right to appeal. An administrative body speaks through its own written records, be they minutes or some sort of order or formal notice to the affected party. Schenley v. Kauth (1953), 160 Ohio St. 109, 113 N.E.2d 625 [51 O.O. 30]; Grimes v. Cleveland (C.P.1969),17 Ohio Misc. 193,243 N.E.2d 777 [ d 279], at , 243 N.E.2d 777. Thus, the filing of an appeal cannot be achieved by the Appellant under the circumstances presented here where no evidence of the journalization, issuance or notice of an order of any kind by the Personnel Appeals Board exists in the record. State ex rel. Hanley v. Roberts, 17 Ohio St.3d 1, 476 N.E.2d 1019 (Ohio 1985). A. The Provisions Of O.R.C. Chapter 119 With Respect To Administrative Appeals Are Strictly Construed. In O.R.C. Sec appeals, this Court has held that strict compliance with laws governing service of administrative agency orders is required, and, independent of due process concerns, jurisdictional requirements create a substantive basis for enforcing strict compliance with administrative procedures for appeal. Moreover, this Court has held that strict compliance with laws governing service of notice is necessary even when the affected employee's due process rights are 11

17 not prejudiced. Hughes v. Ohio Dept. of Commerce (2007)114 Ohio St.3d 47, 2007-Ohio An administrative agency must strictly comply with the procedural requirements of O.R.C for serving the final order of adjudication upon the party affected by it before the 15-day appeal period prescribed in R.C commences. Hughes, supra, at 114 Ohi.o St. 3d The Court of Appeals' finding that the letter from Appellees' law director was sufficient notice to trigger Mr. Lane's right of appeal and deviate from procedural requirements was expressly refuted by the Supreme Court in Hughes; accord, SunRefining &MarketingCo. v. Brennan (1987), 31 Ohio St.3d 306,31 OBR 584,511 N.E.2d 112; ClevelandElec. Illum. Co. v. Lake Cty. Bd. ofrevision, 96 Ohio St.3d 165, 2002-Ohio-4033, 772 N.E.2d B. The Administrative Agency Is Required to Strictly Comply With the Elements of O.R.C. Sec in Issuance of Its Notification to the Party Affected By Its Order or Determination of Rights, Duties, Privileges, Benefits or Legal Relationship. O.R.C. Sec provides in pertinent part: "After such order is entered on its journal, the agency shall serve by certified mail, return receipt requested, upon the party affected thereby, a certified copy of the order and a statement of the time and method by which an appeal may be perfected. A copy of such order shall be mailed to the attorneys or other representatives of record representing the party." O.R.C. Sec requires that there be a "certified copy" as "[a] duplicate of an original document, certified as an exact reproduction by the officer responsible for issuing or keeping the original." Hughes, 114 Ohio St.3d at 51. If this and other criteria for the agency's adjudication are not stircily --- fotiow eu ^, _ 'r right the^,tie c^o appe3,^ r s rr- ilevei trl ggeied: Hugre - ^ ^s, 114 G.l.:o St.3d a^^c 471. Ṭ n Hughes, the respondents argued the court had no jurisdiction to hear an appeal, even if there was no strict compliance with O.R.C. Sec , since Hughes did not strictly comply with the requirements for a notice of appeal as set forth in O.R.C. Sec In Sun Refining, supra, 31 12

18 Ohio St.3d at 309, the court held that the procedural requirements of O.R.C. Sec are a condition precedent to the running of the 15-day appeal period. Thus, since there was a failure to comply with O.R.C. Sec by the Appellees, Mr. Lane's time for exercising his right of appeal under O.R.C. Sec has not commenced. C. The Letter From Respondents' Law Director Does Not Constitute a Finding, Decision, Order or Adjudication Within the Meaning Of O.R.C. Secs (D) And (H). "Adjudication" means the determination by the highest or ultimate authority of an agency of the rights, duties, privileges, benefits, or legal relationships of a specified person, but does not include the issuance of a license in response to an application with respect to which no question is raised, nor other acts of a ministerial nature. O.R.C. Sec (D). "Appeal" is defined as the procedure by which a person, aggrieved by a finding, decision, order, or adjudication of any agency, invokes the jurisdiction of a court. O.R.C. Sec (H). Within the meaning of these provisions, correspondence from the Appellees' law director can in no way be construed as a determination by the highest or ultimate authority at the agency charged with civil service matters for the Appellee, its Personnel Appeals Board. Graul v. State Personnel Board of Review (1962), 117 Ohio App. 108, 191 N.E.2d 188; State ex rel. Kendrick v. Masheter, 176 Ohio St. 232, 235, 199 N.E.2d 13 (Ohio 1964). There is no evidence of the joumalization of the law director's correspondence or of any determination by the Personnel Appeal Board of Mr. Lane's rights. Likewise, there is no evidence of service of any communication from Appellees on the Appellant by certified mail, return receipt requested. Further, there was no evidence that the law director's correspondence to Mr. Lane was a certified copy of said communication. And, finally, the correspondence to Mr. Lane failed to mention or describe the time and method by which an appeal could be perfected. 13

19 D. Appellee Personnel Appeals Board Did Not Issue An Order From Which Appeal Could Be Taken Under O.R.C. Sec The decision appealed from here is inconsistent with this Court's holdings in Hughes and Sun Refining. Since the Ohio Supreme Court has ruled that strict compliance with statutory regulations governing proper service of administrative orders is necessary, it is clear that a writ should have been issued compelling the Personnel Appeals Board to conduct a hearing on Mr. Lane's appeal, and issue an adjudication on the merits of his termination. The application of divergent statutory standards for determining when the right to review of administrative adjudications exists will disrupt the statutory scheme established by the General Assembly. Reversal of the ruling below is necessary to maintain the uniform, consistent standard in O.R.C. Chapter 119 for adjudicating administrative appeals, which imposes a clear obligation on administrative agencies to provide proper notice to affected parties when a right, privilege or benefit is at stake. 14

20 CONCLUSION The lower Court's decision reflects a drastic misreading of the applicable law, and provides a roadmap for depriving civil service employees of their right to review of disciplinary actions. O.R.C. Sec would be effectively undermined if municipal appointing authorities were permitted to avoid challenges to suspensions and removals of employees by simply having their civil service commissions refuse to act on appeals provided under law. Consistent application of O.R.C. Chapter 119's even-handed requirements for compliance by both administrative agencies and affected parties satisfies constitutional prerequisites for due process, and mandates reversal of the decision below to ensure a just result for the Appellant and others similarly situated. Respectfully submitted, Michael A'IGIoses, Attorney Moses Law Offices, L.L.C. Sup. Ct. I.D. # East Broad St.-Ste Columbus, Ohio (614) Fax: (614) OhioMoses@aol.com Attorney for Relator-Appellant Paul Lane 15

21 CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing Merit Brief was served upon the Appellees, in care of Phillip K. Hartmann, Esq., Paul L. Bittner, Esq., and Aaron L. Granger, Esq., Schottenstein, Zox & Dunn, 250 West Street, Columbus, Ohio 43215, by Ordinary U.S. Mail, postage prepaid, this 20`h day of July, 2011, at Columbus, Ohio. Michael A. Moses 16

22 APPENDIX Auux. Pa e Notice of Appeal to the Ohio Supreme Court (May 31, 2011)...:...1 Opinion of the Fairfield County Court of Appeals (April 13, 2011) Judgment Entry of the Fairfield County Court of Appeals (April 13, 2011)

23 IN THE SUPREME COURT OF OHIO PAUL LANE 2531 Minerva Lake Road Columbus, Ohio 43231, Relator-Appellant, vs. Case No. 10-CA-14 CITY OF PICKERINGTON Personnel Appeals Board 100 Lockville Road Pickerington, Ohio 43147, and On Appeal from the Fairfield County Court of Appeals Fifth Appellate District CITY OF PICKERINGTON, c/o Clerk, Lynda Yartin 100 Lockville Road Pickerington, Ohio 43147, Respondent-Appellees. NOTICE OF APPEAL OF RELATOR-APPELLANT, PAUL LANE Phillip K. Hartmann ( ) Paul L. Bittner ( ) Aaron L. Granger ( ) Schottenstein, Zox & Dunn Columbus, Ohio (614) Fax (614) Attorneys for Respondent-Appellees Michael A. Moses ( ) Moses Law Offices, L.L.C. 100 East Broad St.-Ste Columbus, Ohio (614) Fax: (614) Attorney fo; RelatarAppe?.-an- t 1 Appx. 1 MA P CLERK OF COURT SUPREME CCURT OF OHIO

24 IN THE SUPREME COURT OF OHIO PAUL LANE Relator-Appellant, vs. Case No. 10-CA-14 CITY OF PICKERINGTON Personnel Appeals Board and CITY OF PICKERINGTON Respondent-Appellees. NOTICE OF APPEAL Now comes the Relator-Appellant, Paul Lane, and hereby submits his notice of appeal to the Ohio Supreme Court from the decision of the Fairfield County Court of Appeals, Fifth Appellate District, dated April 13, 1109, a copy of which is attached hereto. The case originated in the Fifth District Court of Appeals, raises a substantial constitutional question, and is one of public and great general interest. Respep f 11c, aiihmitted Michael A. Moses, Attomey Moses Law Offices, L.L.C. Sup. Ct. Reg. No East Broad St.-Ste Columbus, Ohio (614) Fax: (614) OhioMoses@aol.com Attorney for Relator-Appellant Paul Lane 2 Appx. 2

25 CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing Notice of Appeal was served upon the Respondent-Appellees, the City of Pickerington and City of Pickerington Personnel Appeals Board, 100 Lockville Road, Pickerington, Ohio 43147, Phillip K. Hartmann, Esq., Paul L. Bittner, Esq., Aaron L. Granger, Esq., Schottenstein, Zox & Dunn, 250 West Street, Columbus, Ohio 43215, by Ordinary U.S. Mail, postage prepaid, this 31st day of May, 2011, at Columbus, Ohio. Michael A. Moses Attorney for Relator-Appellant 3 Appx. 3

26 PAUL LANE -vs- COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT f3cxz^y, tlz JUDGES: William B. Hoffman, P.J. Julie A. Edwards, J. Relator : Patricia A. Delaney, J. Case No. 10-CA-14 FILED 2011 APR 13 PM 3: 00 DEBORAH SPIALLEY CLERK OF COURTS FAIf;E IELD CO. OHIO CITY OF PICKERINGTON, et al., : 0 P I N 10 N Respondents CHARACTER OF PROCEEDING: JUDGMENT: Writ of Mandamus Complaint Surr^mary Judgment Granted in Favor of Respondents; Writ Denied DATE OF JUDGMENT ENTRY: APPEARANCES: For Relator MICHAEL A. MOSES Moses Law Offices, L.L.C. 330 South High Street Columbus, Ohio For Respondents PHILLIP K. HARTMANN PAUL L. BITTNER AARON L. GRANGER Schottenstein, Zox & Dunn, LPA 250 West Street, Suite 700 Columbus, Ohio Appx. 4

27 Fairfield County App. Case No. 10-CA-14 2 Edwards, J. { 1} Relator, Paul Lane, was employed by Respondent, the City of Pickerington, as an Inspections Administrator. On November 5, 2009, Lane was terminated from his employment with the City. Thereafter, on November 17, 2009, Relator requested a hearing before Respondent, City of Pickerington Personnel Appeals Board. By a letter dated December 1, 2009, Relator was informed by an attorney representing the City that the City would not allow a hearing before the Personnel Appeals Board because Relator was an unclassified employee. {1f2} Relator has filed a Complaint for Writ of Mandamus requesting this Court to issue a writ of mandamus requiring Respondents to conduct a hearing and issue a determination on the merits of Relator's appeal. { 3} Both parties have filed motions for summary judgment. Respondents argue they are entitled to judgment as a matter of law because Respondents have no clear duty to provide an appeal due to the fact Relator was not a classified employee. Respondents also suggest Relator has or had an adequate remedy at law by way of an appeal to the Court of Common Pleas pursuant to R.C { 4} "Summary judgment is appropriate if (1) no genuine issue of any material fact remains, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and construing the evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment Is macle:" Jiale ex rel. Duncan v. Mentor City Council, 105 Ohio St.3d 372, 2005-Ohio-2163, 826 Appx. 5

28 Fairfield County App. Case No. 10-CA-14 3 N.E.2d 832, 9; see also Todd Dev. Co. v. Morgan, 116 Ohio St.3d 461, 2008-Ohio-87, 880 N.E.2d 88, 11. { 5} To be entitled to a writ of mandamus, a relator must demonstrate the following: (1) the relator has a clear legal right to the requested relief; (2) the respondent is under a clear legal duty to perform the requested act; and (3) the relator has no plain and adequate remedy in the ordinary course of law. State ex rel. Natl. City Bank v. Bd. of Edn. (1977), 52 Ohio St.2d 81, 84. { 6} We find the question of whether an adequate remedy in the ordinary course of law exists to be dispositive of the issue presented in this case. Respondents contend Relator has or had an adequate remedy at law by way of appeal to the Court of Common Pleas pursuant to R.C We agree. { 7} The Supreme Court of Ohio has addressed this issue in a case analogous to the case at bar. In State ex rel. Henderson v. Maple Heights Civil Service Commission, et al. (1980), 63 Ohio St.2d 39, 406 N.E.2d 1105, the Supreme Court held, "A denial by the respondent civil service commission of jurisdiction of this controversy represented a final appealable order. When the commission refused relator's request for a hearing, relator should have appealed to the Court of Common Pleas. Having failed to do so, and, thereby having failed to pursue his appellate remedies in the ordinary course of law, he cannot now collaterally attack this jurisdictional determination. See State ex rel. Stough v. Bd. of Edn. (1977), 50 Ohio St.2d 47, 362 N.E.2d 266, and State ex rel. Bingh _._am v. r ^»ey _ t66); iȧ. n_ e Oh^o _ St.n^u ^ nnn zc^-^,, n4^ z r rv.e.2u L _.J_ 8,-4. 'f u Id..f L. a, A,-106. { 8} In Henderson, the relator's attorney received a letter from the civil service commission, through the commission's legal counsel, which stated, relator "does not fall Appx. 6

29 Fairfield County App. Case No. 10-CA-14 4 within the confines of the Civil Service Commission of the City of Maple Heights, Ohio." Likewise in the instant case, Relator was sent a letter stating in part, "The PAB does not have jurisdiction to hear an appeal from an unclassified employee regarding dismissal. Therefore, the City respectfully declines your request for a hearing before the PAB." { 9} Article IV, Section 4.11 of the City of Pickerington Charter provides in relevant part: "The Law Director shall be the legal adviser of and attorney and counsel for the Municipality and for all officials, boards, commissions, and departments thereof in all matters relating to their official duties." Pursuant to this section of the City's charter, the law director represents both the city and all boards which would include the Personnel Appeals Board. As part of this representation, the law director sent a letter to Relator advising him he was not going to be afforded a hearing before the Personnel Appeals Board. { 10} We find the letter sent in both cases to be equivalent. The Supreme Court found the letter denying a request for a hearing before a civil service commission to be sufficient from which to appeal to the Court of Common Pleas. The appeal to the Court of Common Pleas provides an adequate remedy in the original course of law the existence of which precludes the issuance of a writ of mandamus. Appx. 7

30 Fairfield County App. Case No. 10-CA-14 5 { 11} Based upon the foregoing, we grant summary judgment in favor of Respondents and deny Relator's motion for summary judgment. The writ of mandamus will not issue. By: Edwards, J. Hoffman, P.J. and Delaney, J. concur r JUDGES JAE/as0223 Appx. 8

31 IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, &U- E D FIFTH APPELLATE DISTRICT 2p1 I APR 13 PM 3: 00 OEBORAH SMALLEY PAUL LANE : CLERK OF COURTS FAIftFEF=i~.OHIO Relator -vs- JUDGMENT ENTRY CITY OF PICKERINGTON Respondents : CASE NO. 10-CA-14 For the reasons stated in our accompanying Memorandum-Opinion on file, summary judgment is granted in favor of Respondents. The Complaint for writ of mandamus is denied. Costs assessed to Relator. JUDGES Appx. 9