State ex rel. Anderson v. State Teachers Retirement Sys. Bd. , 2021 Ohio 1378 ( 2021 )

[Cite as State ex rel. Anderson v. State Teachers Retirement Sys. Bd., 2021-Ohio-1378.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel Bart G. Anderson, :
Relator, : No. 19AP-293
v. : (REGULAR CALENDAR)
State Teachers Retirement System :
Board of Ohio,
:
Respondent.
:
D E C I S I O N
Rendered on April 20, 2021
On brief: Graff and McGovern, L.P.A., and Luther L.
Liggett, Jr., for relator.
On brief: Dave Yost, Attorney General, Isaac Molnar, and
Mary Therese J. Bridge, for respondent.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
BEATTY BLUNT, J.
{¶ 1} Relator, Bart G. Anderson, filed this petition requesting this court to issue a
writ of mandamus ordering respondent, the State Teacher's Retirement System Board
("STRS"), to reinstate his retirement credit for school years 2013-14 and 2014-15. We
referred the case to a magistrate for briefing and argument and, on August 19, 2020, the
magistrate determined that a writ should issue. STRS filed timely objections and the case
has now been submitted for ruling.
No. 19AP-293 2
{¶ 2} The facts of this case are simple and are undisputed. North Bass Local School
District ("North Bass") operates no schools and employs no instructional staff but is
required by statute to employ a superintendent. (Mag's. Decision at ¶ 4, citing R.C.
3319.01). The small number of students that live on North Bass Island attend schools in
different districts, and the superintendent's role is "on call." Anderson served as the school
superintendent of North Bass from 1996 through 2015 but also held fully paid positions
with other STRS employers from the years 1996 through 2013. Anderson's contract with
the North Bass awarded him salary compensation at a rate of $1 per month for his service
and provided both that "[a]ll contributions for STRS shall be picked up by the board on the
salary listed in the contract and for future amendments," and those contributions "shall be
included in the Superintendent's salary for STRS purposes." Id. at ¶ 6 (quoting relator's
employment agreement).
{¶ 3} It appears that Anderson and the North Bass School Board entered into the
employment agreement under the assumption that, although Anderson's actual salary was
nominal, he would receive a full year of STRS retirement benefit for each of his years of
service. The first appearance of his North Bass position on Anderson's STRS account is for
the 2007-08 school year, which indicates he received a total salary of $365. His records for
the 2013-14 and 2014-15 years indicate he received $12 each year. Anderson received full
retirement credit for the school years prior to 2013, while he was contemporaneously
employed in another STRS-eligible position. The only years at issue in this case are the
school years 2013-14 and 2014-15—during those years, the only STRS-eligible position
Anderson held was as a North Bass superintendent.
{¶ 4} By letter dated November 3, 2015, STRS recalculated the retirement credit
that Anderson was to receive for 2013-14 and 2014-15, lowering credit for each year from
1.00 years of service to .01 years of service. Id. at ¶ 9. Anderson then made significant efforts
to get this recalculation reversed, as did the treasurer of North Bass, Paul Stonerook, as did
the North Bass School Board. The North Bass School Board in fact adopted a resolution in
agreement with Anderson that the STRS credit was a material term of their service contract,
and it was "the Board's determination that Dr. Anderson provided services to the Board as
its Superintendent every day of the [2013-14 and 2014-15] school year, 365 days [per year],
as required by R.C. 3319.01." Id. at ¶ 13, quoting Agreement Clarifying the Employment
No. 19AP-293 3
Contract for Bart G. Anderson. Similarly, the North Bass School Board took the position
that the retirement days are crucial to attracting candidates for their statutorily required
superintendent position, because they operate in such a remote area. But notwithstanding
the new resolution between Anderson and North Bass, STRS refused to recalculate
Anderson's service credit. STRS indicated it was "not persuaded by your letter or the
resolution retroactively recharacterizing the terms of Mr. Anderson's employment with the
North Bass School District." Id. at ¶ 15, quoting letter from STRS General Counsel to Paul
Stonerook.
{¶ 5} Anderson filed the instant petition for writ of mandamus on May 3, 2019.
After submission of stipulated evidence by both parties and certain additional evidence by
Anderson, the case was argued and submitted to a magistrate. The magistrate rejected some
of the submitted evidence, including the clarifying agreement between Anderson and the
school board, but nevertheless concluded:
STRS has not fully considered the evidence and has taken
improper notice of relator's compensation during the disputed
periods, rather than only considering days of service. * * *.
[Moreover,] Ohio law does not expressly exclude on-call days
from "days of service" as counted in Ohio Adm.Code 3307:1-2-
01 * * *. The parallel offered by STRS staff between relator's
position and that of substitute teachers, moreover, is
inapposite * * * [in contrast to substitute teachers, relator] was
not free to decline any North Bass commitments as they might
arise.
Under the interpretation of Ohio Adm.Code 3307:1-2-01
offered in opposition to relator's complaint, STRS participants
are left to guess at the retirement value of days served on call
even as they perform such duties, and STRS staff are left with
the task of determining, long after the fact and on an individual
and inconsistent basis, whether credit will be accorded. [R.C.
3307.53] and [OAC 3307:1-2-01], however, refer to days of
service, not days in which specific identifiable tasks were
accomplished. The magistrate finds that relator was "of
service" to North Bass for 365 days per school year under his
contract, and should receive corresponding service credit.
Id. at ¶ 12-13. Accordingly, the magistrate recommended that this court issue a writ
"ordering the board to grant relator his service credit for the years at issue." Id. STRS
objects to this decision, arguing the magistrate erred by substituting his judgment for that
No. 19AP-293 4
of the STRS board and further that STRS' decision was supported by "some evidence" and
that therefore a writ should not issue.
{¶ 6} We begin by observing that neither party asserts a procedural bar to
Anderson's petition. Accordingly, this case turns entirely on the validity of STRS'
interpretations of R.C. 2207.53 and Ohio Adm.Code 3307:1-2-01. The statute provides:
The state teachers retirement board shall credit a year of
service to any teacher participating in the STRS defined benefit
plan who is employed on a full-time basis in a school district
for the number of months the regular day schools of such
district are in session in said district within any year. The board
shall adopt appropriate rules and regulations for the
determination of credit for less than a complete year of service,
and shall be the final authority in determining the number of
years of service credit. The board shall credit not more than one
year for all service rendered in any year.
The board shall adopt rules for the purpose of determining the
number of years or partial years of service credit to be granted
to a member under section 3307.25 of the Revised Code. The
amount of service credit shall be based on the member’s length
of participation in and contribution to an STRS defined
contribution plan. The board shall be the final authority in
determining the amount of service credit.
R.C. 3307.53. And the administrative code in effect at the time of Anderson's disputed years
of service provided in part as follows:
(A) As used in section 3307.53 of the Revised Code and this
rule:
(1) "Full-time service" means employment as a teacher under a
contract that:
(a) Requires teaching service that begins and ends on either:
(i) The first and last day of a year consisting of three hundred
sixty-five days; or
(ii) The first and last day of a school year of at least one hundred
eighty days or three quarters; and
(b) Provides compensation in an amount equal to the rate paid
under an employer's overall salary schedule for teachers of the
same experience teaching the entire day for every day of the
school year. College and university teachers must be employed
No. 19AP-293 5
under a contract that provides compensation equal to the rate
paid to other teachers of the same experience teaching the
designated full-time equivalent workload.
(2) "Part-time service" means employment on any basis other
than those identified in paragraph (A)(1) of this rule.
(B) Full-time service:
(1) One hundred twenty or more days or two quarters of
contributing service as a teacher for a single employer
constitutes one year of service credit to be used in determining
total credit for retirement purposes.
(2) If less than one hundred twenty days of teaching, the annual
service credit will be determined in accordance with paragraph
(C) of this rule.
Ohio Adm.Code 3307:1-2-01. Based on its interpretation of the statute and rule, STRS
determined Anderson was not entitled to credit. Specifically, STRS interpreted the
statutory phrase "of service" as "days [in which] the employee actually was 'of service' and
require[d] some evidence of that service." (Objs. to the Mag's. Decision at 6.) As noted
above, the magistrate rejected this view, and concluded that both the statute and rule "refer
to days of service, not days in which specific identifiable tasks were accomplished," and
found that Anderson "was 'of service' to North Bass for 365 days per school year under his
contract." (Emphasis added.) (Mag's. Decision at 13.)
{¶ 7} Our review of Anderson's petition is guided by the general rule that we "must
accord [STRS] the deference to which it is entitled in interpreting the pertinent legislation
* * *." State ex rel. Gill v. School Emps. Retirement Sys. Ohio, 121 Ohio St.3d 567, 2009-
Ohio-1358, ¶ 28. Mandamus is available as remedy to correct an abuse in determining
benefits eligibility by a state retirement fund. State ex rel. Sales v. Ohio Pub. Emp.
Retirement Bd., 156 Ohio St.3d 433, 2019-Ohio-1568, ¶ 6. STRS abuses its discretion in
making a benefits determination only if it acts in a manner that is unreasonable, arbitrary,
or unconscionable. State ex rel. Pipoly v. State Teachers Retirement Sys., 95 Ohio St.3d
327, 2002-Ohio-2219, ¶ 14. Moreover, STRS's decision on a benefits determination is an
abuse of discretion if it has entered an order that is not supported by "some evidence." State
ex rel. Marchiano v. School Emps. Retirement Sys., 121 Ohio St.3d 139, 2009-Ohio-307,
¶ 20-21, citing State ex rel. Grein v. Ohio State Hwy. Patrol Retirement Sys., 116 Ohio St.3d
No. 19AP-293 6
344, 2007-Ohio-6667, ¶ 9. The presence of contrary evidence is not dispositive so long as
the "some evidence" standard has been met. State ex rel. Am. Std., Inc. v. Boehler, 99 Ohio
St.3d 39, 2003-Ohio-2457, ¶ 29. Accordingly, mandamus will lie only if the board's decision
is not supported by any evidence. State ex rel. Woodman v. Ohio Pub. Emps. Retirement
Sys., 144 Ohio St.3d 367, 2015-Ohio-3807, ¶ 17.
{¶ 8} The magistrate recommended granting the writ for two reasons. First, the
magistrate determined that STRS should not have considered Anderson's overall
compensation in determining whether his on-call days constitute days "of service" under
the statute and rule. Second, the magistrate determined that STRS's interpretation of Ohio
Adm.Code 3307:1-2-01 was incorrect, because the rule does not expressly state that "on-
call" days are to be excluded from the days "of service" counted under the rule. The
magistrate was concerned with a practical issue—in situations at the margins like
Anderson's, claimants must guess about the retirement value of their work at the time they
are performing it.
{¶ 9} We find these justifications unpersuasive. Most importantly, we believe the
magistrate failed to give due deference to STRS's interpretation of its own statute and
administrative rules, in contrast to the requirements of Gill. See Gill, 2009-Ohio-1358, at
¶ 8. Moreover, we believe that "some evidence" supports STRS's decision that this
arrangement by North Bass and Anderson was ultimately a way to shift the cost of its
statutorily mandated superintendent onto STRS, and we do not believe that the evidence
presented supports the magistrate's conclusion that Anderson was "of service" to the
district for all 365 days of the years in question. As STRS observes in its objections, it
"specifically requested records to prove service days [and] while "Treasurer Paul Stonerook
stated that such records did exist * * * [r]elator chose not to provide any evidence of actual
service—no emails, no email usage logs, no phone records, no calendar dates, no meeting
dates, no reports." (Objs. to Mag's. Decision at 10.)
{¶ 10} In light of any evidence to the contrary, the plain terms of Anderson's contract
the district, even standing alone, were a sufficient basis for STRS to determine that he
performed only intermittent service and that his status as being "on-call" is not alone
sufficient to establish that he was "of service" for all the days he and the district have
claimed. This decision was supported by "some evidence," and STRS's interpretation of the
No. 19AP-293 7
statute and rules is entitled to deference. Accordingly, we conclude that the magistrate's
decision was erroneous, that the respondent's objections should be sustained, that the
relator's petition is without merit, and that the writ should be denied.
Objections sustained and writ denied.
KLATT and SADLER, JJ., concur.
No. 19AP-293 8
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Bart Anderson, :
Relator, :
v. : No. 19AP-293
State Teachers Retirement Board, : (REGULAR CALENDAR)
Respondent. :
MAGISTRATE'S DECISION
Rendered on August 19, 2020
Graff and McGovern, LPA, and Luther L. Liggett, Jr., for
relator.
Dave Yost, Attorney General, Isaac Molnar, and Mary
Therese J. Bridge, for respondent.
{¶ 11} Relator, Bart Anderson, seeks a writ of mandamus ordering respondent,
State Teachers Retirement Board ("the Board" or "STRS Board"), to reinstate relator's
retirement credit in the State Teachers' Retirement System ("STRS") for certain periods in
which relator worked as a school superintendent for North Bass Local School District. The
dispute over creditable service in large part arises out of North Bass's unusual position as
an island school district that does not operate any school or employ any teachers but sends
its few students to neighboring school systems under contract.
Findings of Fact:
{¶ 12} 1. Relator is an accredited educator who began earning retirement credit
under STRS as a teacher in 1992.
No. 19AP-293 9
{¶ 13} 2. Relator assumed his duties as Superintendent of North Bass Local School
District in 1996 and served through July 31, 2015.
{¶ 14} 3. Relator's service as North Bass Superintendent was pursuant to annual
contracts that recognized the unique financial position of the district and limited scope of
duties of the position by paying relator a nominal sum.
{¶ 15} 4. Every Ohio school district, even one like North Bass that operates no
schools and employs no instructional staff, is required to employ a superintendent pursuant
to R.C. 3319.01.
{¶ 16} 5. Relator held fully-paid positions with other STRS employers for the years
from 1996 to 2012, so that credit for his North Bass service for those years is not at issue
because relator could only earn one year of STRS credit for every year of employment,
regardless of the number of employers.
{¶ 17} 6. Relator entered into employment agreements with North Bass for 2013-
2014 and 2014-2015 school years specifying as follows:
This employment contract is entered into this 20th day of
June, 2013, by and between the Board of Education of the
North Bass Island School District (hereinafter "Board") and
Bart Anderson, hereinafter "superintendent."
[One] TERMS
a. In order to fulfill the requirements in Ohio law, the Board
in accordance with its minutes from the meeting held on
June 20, 2013, hereby employs, and the Superintendent
hereby accepts employment as Superintendent of Schools for
a period of five (5) years commencing on the first day of
August 2013 and ending on the 31st day of July 18, 2018.
[Two] SALARY COMPENSATION
a. The Superintendent shall annually, before July 1 of each
year pay the superintendent a salary of $1 per month for the
services contained in the contract. All requirement
contributions for STRS shall be picked up by the board on the
salary listed in the contract and for future amendments. Said
pick-up shall be included in the Superintendent's salary for
STRS purposes. Further, the superintendent shall be
provided:
No. 19AP-293 10
I. The same benefits as provided to other employees or
member of the board of the district.
II. Reasonable expenses shall be reimbursed at the board
approved rates for work performed for the school district as
approved by the treasurer.
[Three] DAYS TO BE WORKED
a. The superintendent shall devote such time and energies
necessary to perform the duties specified in law. Because of
the unique nature of the Island school district, the
superintendent shall be full-time and on-call 365 days
annually. The superintendent agrees to be on call [a]t all times
necessary to fulfill these duties and the board acknowledges
the superintendent shall be employed in another capacity,
elsewhere, during the time of this agreement and shall not
maintain set hours or schedule to fulfill the duties but shall be
available at board's discretion.
[Four] SICK LEAVE
a. The superintendent shall be entitled to fifteen (15) days of
sick leave annually in accordance with Ohio law. Sick leave
shall accumulate without limit.
In witness whereof, the parties have set their hand to this
contract on June 20, 2013.
{¶ 18} 7. The first school year for which relator's North Bass employment appears
on his STRS account record is the 07-08 school year with earnings of $365. Similarly low
figures appear annually thereafter, culminating in the 2013-2014 and 2014-2015 school
years, in which relator received $12 each year from North Bass Local Schools.
{¶ 19} 8. In contrast with prior years, for 2013-2014 and 2014-2015, relator did not
hold other STRS or other public retirement service employment that could provide service
credit for those years.
{¶ 20} 9. By letter dated November 3, 2015, STRS informed relator that he would
not receive credit for two years of his North Bass employment:
A recent audit of your account revealed an error in the service
credit reported by North Bass Local Schools for the years
shown below. Your service credit has been corrected as
follows:
No. 19AP-293 11
School year Previous credit Corrected credit
2013-2014 1.00 0.01
2014-2015 1.00 0.01
{¶ 21} 10. Relator continued to seek credit for the years in question. Paul Stonerook,
the Treasurer of North Bass, furnished to STRS a copy of relator's employment contract.
STRS employee Kele Willis acknowledged receipt via e-mail on November 13, 2015:
I will forward your email and attachment for review however
based upon the earnings it doesn't appear that a full year of
service credit is justified. I understand that his current
contract states that he worked 365 days but the credit in
comparison to the compensation will also factor into this.
(Emphasis added).
{¶ 22} 11. Willis provided a further e-mail response later that day:
Thank you for supplying the contract for Mr. Anderson. We
will need more information regarding the service credit
adjustment you requested. In order to calculate service, we
would need documentation of the number of days that Mr.
Anderson actually performed a service for North Bass
Schools. Being "on-call" would not count as days worked in
the service credit calculation. For example, many substitute
teachers are "on-call" for the full school year but are only
called up to work a few days. The service credit calculation
would use the number of days the substitute actually worked
divided by 180.
{¶ 23} 12. Stonerook then replied to Willis's e-mail with the following e-mail to STRS
supporting relator's position that he worked 260 days of service each year:
It is my calculation, belief, interpretation, and verification as
treasurer of the board that Dr. Anderson was "in service" and
that official school district email was checked, responded and
appropriately updated a minimum of five (5) days per week
and therefore at a minimum, 260 days of service were
performed. Dr. Anderson never failed to reply to a request,
email or correspondence within one business day. Based on
email records alone, over 260 days of service can be verified.
Although small, North Bass local completes the same reports
as every other school district.
Requirements for the Ohio Department of Education (e.g.,
Ohio CORE, CCIP, SAFE, eTEPS, Ohio testing portal,
No. 19AP-293 12
Department of Health Immunization annual record, Blind
data survey, Federal Drug Free portal, Special Education
annual report, School Finance, STRS, SERS, Battelle for Kids,
eVASS, Ohio Department of Education Secure Data System,
SSID verification, Ohio Department of Education Portal, Ohio
Educational Data System, Secure Data Portal); Updating
policy, currency of policy, rules and administering the
responsibilities of the school district. For example, all North
Bass Local School policies were updated during the most
recent two school years; Board agenda, minutes, audit and
preparation of documents necessary for the board to conduct
the business of the school district; and other matters as they
arose with the county auditor, Ohio Department of Education,
Ohio Legislature, etc.
{¶ 24} 13. The North Bass School Board met on May 12, 2016 and, among other
business, "James Yelensky moved to approve Bart Anderson's contract for Superintendent
for North Bass School District for 2013-2014 and 2015-2015 [sic] to correct STRS errors.
Mary Stonerook seconded the motion. All voted yes, motion carried." This "clarifying"
resolution and contract retroactively enacted by the board provided as follows:
AGREEMENT
CLARIFYING THE EMPLOYMENT CONTRACT
FOR
BART G. ANDERSON
WHEREAS there is currently in existence a contract between
the NORTH BASS LOCAL SCHOOL DISTRICT BOARD OF
EDUCATION (hereinafter "the Board") and BART G.
ANDERSON (hereinafter "Dr. Anderson") for the
employment of Dr. Anderson as an Administrator through
June 30, 2015; and
WHEREAS, R.C. 3319.01 mandates that local school districts
employ a superintendent 365 days per year; and
WHEREAS, Dr. Anderson was previously employed by the
Board as the Superintendent of the North Bass Local School
District pursuant to a contract with an effective date of
August 1, 2011 ("Superintendent Contract"); and
WHEREAS, the Board desired Dr. Anderson to perform his
under R.C. 3319.01 off-campus 365 days per year due to the
fact that the North Bass Local School District is located on a
remote island; and
No. 19AP-293 13
WHEREAS, the Board did not require Dr. Anderson to
maintain a log of his days or hours worked as the
Superintendent of the North Bass Local School District; and
WHEREAS, pursuant to the terms of the Superintendent
Contract and consistent with Dr. Anderson's position and
employment, the Board properly reported to the State
Teachers Retirement System ("STRS") that Dr. Anderson
qualified for one (1.00) year of STRS service credit for the
2013-2014 school year and one (1.00) year of STRS service
credit for the 2014-2015 school year; and
WHEREAS, on November 3,2015, STRS sent a letter to Dr.
Anderson indicating that his service credit had been
"corrected" for the 2013-2014 school year from 1.00 years to
0.01 years and for the 2014-2015 school year from 1.00 years
to 0.01 years; and
WHEREAS, the Parties mutually agree that Dr. Anderson'
receiving one (1) year of STRS service credit for each year he
served as the Board's Superintendent was a material term of
the Superintendent Contract; and
WHEREAS, the Board desires to clarify the terms of Dr.
Anderson's Superintendent Contract in order to avoid any
potential claims for breach of contract; and
WHEREAS, the Board recognizes that it may be difficult to
attract administrators to work in the North Bass Local School
District if STRS service credit is not awarded despite the
administrators providing substantial and necessary services
for the Board;
IT IS HEREBY AGREED by the Board and Dr. Anderson as
follows:
[One] While there is no floor or limitation on the daily rate
paid to a superintendent hired pursuant to R.C. 3319.01, the
parties mutually agree that Dr. Anderson be compensated at
the rate of $1.00 per day for every day of service he provided
to the Board as its Superintendent during the 2013-2014
school year and at the rate of $1.00 per day for every day of
service he provided to the Board as its Superintendent during
the 2014-2015 school year.
[Two] The daily rate paid to Dr. Anderson for his service to
the Board as the Superintendent of the North Bass Local
No. 19AP-293 14
School District during the 2013-2014 and 2014-2015 school
years has no bearing on the quality, level, or amount of service
Dr. Anderson provided to the Board and the North Bass Local
School District in performing all duties required of him as
Superintendent under Title 33 of the Ohio Revised code, as
well as those that were required of him by the Board.
[Three] It is the Board's determination that Dr. Anderson
provided services to the Board as its Superintendent every day
of the 2013-2014 school year–i.e., 365 days, as required by
R.C. 3319.01.
[Four] It is also the Board's determination that Dr. Anderson
provided services to the Board as its Superintendent every day
of the 2014-2015 school year–i.e., 365 days, as required by
R.C. 3319.01.
[Five] Based on the foregoing, the Board agrees to pay Dr.
Anderson the sum of $730.00 for his 365 days of service as
the Board's Superintendent during the 2013-2014 school year
and for his 365 days of service as the Board's Superintendent
during the 2014-2015 school year. Said payment shall be
made to Dr. Anderson within 30 days from the execution of
this agreement.
[Six] The Board further agrees that all required employee
retirement contributions for STRS shall be "picked up" by the
Board on the sum paid to Dr. Anderson for his service to the
Board pursuant to this agreement. Said "pick up" shall be
included in Dr. Anderson's salary for STRS purposes.
[Seven] The Board further agrees to file all necessary
documentation with STRS with regard to the sum paid to Dr.
Anderson for his service to the Board pursuant to this
agreement and the Board's determination of the number of
days worked by Dr. Anderson as the Board's Superintendent
during the 2013-2014 and 2014-2015 school years.
[Eight] The Board and Dr. Anderson hereby release any and
all claims they may now have or could have asserted against
the other, or the officers, employees, or agents of the other,
past or present, arising from or connected with the
employment of Dr. Anderson with the Board, through
June 30, 2015–i.e., Dr. Anderson's last day employed as the
Board's Superintendent.
No. 19AP-293 15
WHEREFORE the parties, by their own hand or through their
designated representatives, have indicated their acceptance of
the foregoing terms by affixing their signatures below:
FOR DR. BART G. ANDERSON:
/S/ Bart G. Anderson
Dated: 3-30-16
FOR THE NORTH BASS ISLAND LOCAL SCHOOL DISTRICT
BOARD OF EDUCATION
/S/ James A. Yelensky
President
/S/ Paul Stonerook
Treasurer
Dated: 5-12-2016
Resolution Number: 2016120
{¶ 25} 14. The board passed a substantially similar resolution in 2017.
{¶ 26} 15. Each of the two North Bass School District Board's resolutions, when
conveyed to STRS staff, met with the response that "STRS Ohio is not persuaded by your
letter or the resolution retroactively recharacterizing the terms of Mr. Anderson's
employment with the North Bass School District. The service credit reductions
implemented by STRS Ohio will remain in place." (Letter from William J. Nevell, STRS
General Counsel, October 17, 2017, to Paul Stonerook, Treasurer, North Bass Island Local
District, stipulated record at 36.)
{¶ 27} 16. James VanErten, Ottawa County Prosecuting Attorney, also submitted
letters to STRS to support relator's position.
{¶ 28} 17. STRS considered, at relator's urging, a comparable service credit
situation for Matthew Markling, past superintendent for Middle Bass Local Schools and
relator's successor as superintendent with North Bass. Middle Bass is another island school
district with minimal activity other than contracting for its students to receive education
elsewhere. STRS considered Markling's account, which indicated that STRS had initially
reduced Markling's service credit for his work with North Bass and Middle Bass, a period
No. 19AP-293 16
in which Markling earned at most $250 per school year. After Markling complained, STRS
reinstated Markling's service credit for his years with the island school districts. STRS
distinguished Markling's employment on the basis that Markling's contracts with Middle
Bass specified 250 days of work, rather than the on-call requirements in relator's contracts,
and Markling's contract contained specific requirements for Markling to attend
professional development meetings and maintain membership in the Buckeye Association
of School Administrators.
{¶ 29} 18. STRS denied relator's request to reinstate his service credit.
{¶ 30} 19. Relator filed his complaint in mandamus with this court on May 3, 2019.
{¶ 31} 20. The parties submitted evidence in the form of a certified record of
proceedings containing all documentation of correspondence and responses with STRS,
additional evidence submitted by respondent regarding school board contracts for relator
and Markling, and subsequent school board resolutions and correspondence.
{¶ 32} 21. Relator submitted additional evidence in the form of his own affidavits, a
supplemental affidavit from North Bass School Board, and two affidavits from Markling.
STRS moved to strike relator's supplement, and then withdrew the motion.
Discussion and Conclusions of Law:
{¶ 33} Mandamus is available as a remedy to correct an abuse in determining
benefits eligibility by a state retirement fund. State ex rel. Sales v. Ohio Pub. Emp.
Retirement Bd., 156 Ohio St.3d 433, 2019-Ohio-1568, ¶ 6. There is an abuse of discretion
only if STRS acts in a manner that is unreasonable, arbitrary, or unconscionable. State ex
rel. Pipoly v. State Teachers Retirement Sys., 95 Ohio St.3d 327, 2002-Ohio-2219, ¶ 14.
Another factor in considering whether STRS has abused its discretion is whether STRS has
entered an order that is not supported by at least "some evidence." State ex rel. Marchiano
v. School Emps. Retirement Sys., 121 Ohio St.3d 139, 2009-Ohio-307, ¶ 20-21, citing State
ex rel. Grein v. Ohio State Highway Patrol Retirement Sys., 116 Ohio St.3d 344, 2007-
Ohio-6667, ¶ 9. The presence of contrary evidence is not dispositive, so long as the some
evidence standard has been met. State ex rel. Am. Std., Inc. v. Boehler, 99 Ohio St.3d 39,
2003-Ohio-2457, ¶ 29. Mandamus will lie only if the board's decision is not supported by
any evidence. State ex rel. Woodman v. Ohio Pub. Emps. Retirement Sys., 144 Ohio St.3d
367, 2015-Ohio-3807, ¶ 17.
No. 19AP-293 17
{¶ 34} Relator presents two arguments: first, that applicable statutes and STRS
administrative regulations provide a clear legal right to service credit for the years in
question, and second, that STRS's disparate treatment of Markling under essentially
identical employment conditions establishes an abuse of discretion by STRS in denying
credit to relator where it had been granted to Markling.
R.C. 3307.53 provides that STRS will calculate service credit as follows:
The state teachers retirement board shall credit a year of
service to any teacher participating in the STRS defined
benefit plan who is employed on a full-time basis in a school
district for the number of months the regular day schools of
such district are in session in said district within any year.
STRS then promulgated Ohio Adm.Code 3307:1-2-01 to further refine the calculation of
service credit:
(C) Calculation of service credit for part-time service:
(1) If a teacher has taught in a given year for one employer for
at least ninety days or five hundred hours, where hours are
used only when the actual number of days of service is not
available from the employer's records, service credit shall be
calculated as follows, provided that the employment
relationship has been in effect for a period of time at least
equal to one hundred twenty days of that school year:
(a) If total compensation for the year is in an amount at least
equal to the base amount as defined in section 3317.13 of the
Revised Code, annual service credit shall be one year.
(b) If total compensation for the year is in an amount less than
the base amount as defined in section 3317.13 of the Revised
Code, annual service credit shall be the lesser of:
(i) Actual days of service divided by one hundred eighty; or
(ii) Hours of service divided by one thousand, but only if the
actual number of days of service is not available from the
employer's records; or
(iii) Actual compensation for the year divided by twelve
thousand dollars.
(2) If a teacher has taught for one employer for less than
ninety days or five hundred hours in a year or the employment
No. 19AP-293 18
relationship has been in effect for a period of time less than
one hundred twenty days of that school year:
(a) Service credit will be determined by the lesser of:
(i) Dividing the number of days or partial days for which
compensation was paid for actual teaching service rendered
by one hundred eighty; or
(ii) Actual compensation for the year divided by twelve
thousand dollars.
(b) If actual number of days or partial days taught is not
available from payroll records and the teacher is compensated
for hourly service, service credit will be determined by the
lesser of:
(i) Dividing the number of hours for which compensation was
paid by one thousand; or
(ii) Actual compensation for the year divided by twelve
thousand dollars.
(3) If actual number of days or partial days taught is not
available from payroll records and the teacher is compensated
for per cent based salaried service, service credit granted on a
contract which is issued on per cent of full-time employment
as a teacher will be determined in accordance with the actual
contract percentage averaged over three quarters or two
semesters during the year, except that one full year of service
credit will be granted when such employment exceeds sixty-
six per cent averaged over three quarters or two semesters
during the year.
{¶ 35} STRS does not dispute that, under the statute and regulation, relator seeks
service credit under the provisions that calculate days of service rather than the alternative
bases of the amount of dollar compensation, retirement contribution, or rules pertaining to
state minimum salary as a qualifier. He therefore seeks service based on "[a]ctual days of
service divided by one hundred eighty" under Ohio Adm.Code 3307:1-2-01(C)(1)(b)(i).
Relator asserts that he satisfies requirements for a full year's credit because his employment
relationship was in effect for at least 120 days of a school year, and the on-call provision of
his contract meant that he worked every day of the year, and that this divided by 180 yielded
a full year of credit. Relator argues that STRS illegally neutralized this standard when it
No. 19AP-293 19
improperly declared that relator's contract calling for him to be on-call every day did not
establish "days of service" to meet the Ohio Adm.Code 3307:1-2-01(C)(1)(b)(i) standard.
Relator also points out that communications from STRS staff improperly inject the amount
of relator's compensation as a factor in the decision, as found in Kele Willis's November 13,
2015 e-mail: "[t]he credit in comparison to the compensation will also factor into this."
(emphasis added).
{¶ 36} STRS concedes that neither statute nor regulation specifically addresses
whether "on-call" time is work time for purposes of determining STRS credit. STRS points
out, however, that comparable Federal Fair Labor Standards Act ("FLSA") regulations
distinguish between work and on-call time and provide that "an employee who is not
required to remain on the employer's premises * * * is not working while on call." 29 CFR
785.17. STRS then points out that relator was offered the opportunity at various points in
the process to furnish evidence of the number of days that relator engaged in activities on
behalf of the school district, and has not done so.
{¶ 37} The parties have not offered, nor has the magistrate discovered, a statute or
regulation pursuant to which relator could find legal recourse to contest the STRS staff
decision denying his service credit. Unlike cases involving disputes over final average
salary, which may go before the STRS board for a hearing pursuant to R.C. 3307.501(E),
there is no framework for formal contestation of the staff decision in the present case. The
magistrate therefore commences by concluding that relator has no adequate remedy in the
ordinary course of the law and may seek a writ of mandamus.
{¶ 38} The magistrate first decides that North Bass Board's after-the-fact
resolutions, as well as the legally conclusory statements provided by the Ottawa County
Prosecutor, are not helpful in disposition of the current matter, which must be predicated
solely upon regulations and statutes in effect at the time relator was employed and the
contract under which he took that employment. The magistrate further notes that neither
relator nor North Bass Schools have responded to STRS's request that they provide
evidence of days on which relator "actively engaged" in school business, at least insofar as
STRS seeks to define that term. Finally, the magistrate considers that STRS's disparate
treatment of Superintendent Markling, while entirely based on distinctions without a
No. 19AP-293 20
difference, is not dispositive of relator's situation. If STRS erred in favor of Superintendent
Markling, repeating the error in favor of relator would not be relator's clear legal right.
{¶ 39} The Magistrate concludes, however, that STRS has not fully considered the
evidence and has taken improper notice of relator's compensation during the disputed
periods, rather than only considering days of service. The magistrate further concludes that
Ohio law does not expressly exclude on-call days from "days of service" as counted in Ohio
Adm.Code 3307:1-2-01. While Ohio does turn to the FLSA for definitions in other areas of
employment law, such as R.C. 4111.14, governing minimum wage, which expressly defines
certain terms ("employer," "employee," "employ," "person," and "independent
contractor"), no such express reference exists in STRS's statutory and regulatory
framework.
{¶ 40} The parallel offered by STRS staff between relator's position and that of
substitute teachers, moreover, is inapposite. Substitute teachers are by definition only
called to work as replacements to perform work normally performed by full-time teachers.
The fact that they are on call to accept such work, which they may well decline on a given
day, does not define their duties but only their availability as substitutes. Here, the on-call
term requires a different commitment for relator, who was not free to decline any North
Bass commitments as they might arise.
{¶ 41} Under the interpretation of Ohio Adm.Code 3307:1-2-01 offered in
opposition to relator's complaint, STRS participants are left to guess at the retirement value
of days served on call even as they perform such duties, and STRS staff are left with the task
of determining, long after the fact and on an individual and inconsistent basis, whether
credit will be accorded. The statute and regulation, however, refer to days of service, not
days in which specific identifiable tasks were accomplished. The magistrate finds that
relator was "of service" to North Bass for 365 days per school year under his contract, and
should receive corresponding service credit.
{¶ 42} It is therefore the magistrate's conclusion that a writ must issue in this case
ordering the board to grant relator his service credit for the years at issue.
/S/ MAGISTRATE
MARTIN L. DAVIS
No. 19AP-293 21
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii),
unless the party timely and specifically objects to that factual
finding or legal conclusion as required by Civ.R. 53(D)(3)(b).