State ex rel. Fitzgerald v. Ohio Police & Fire Pension Fund Bd. of Trustees , 2015 Ohio 5079 ( 2015 )

[Cite as State ex rel. Fitzgerald v. Ohio Police & Fire Pension Fund Bd. of Trustees, 2015-Ohio-5079.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Ramona K. Fitzgerald, :
Relator, :
v. : No. 14AP-968
Board of Trustees of Ohio Police & : (REGULAR CALENDAR)
Fire Pension Fund and Ohio Police &
Fire Pension Fund, :
Respondents. :
D E C I S I O N
Rendered on December 8, 2015
Law Offices of Gary A. Reeve, LLC, and Gary A. Reeve, for
relator.
Michael DeWine, Attorney General, John J. Danish, and
Mary Therese J. Bridge, for respondents.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
LUPER SCHUSTER, J.
{¶ 1} Relator Ramona K. Fitzgerald initiated this original action requesting a writ
of mandamus ordering the Ohio Police and Fire Pension Fund ("OP&F") and its board of
trustees ("board") (collectively "respondents") to accept the election to enroll form
Fitzgerald submitted on February 10, 2011, regarding OP&F's deferred retirement option
plan ("DROP").
{¶ 2} This court referred the matter to a magistrate pursuant to Civ.R. 53(C) and
Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate rendered a decision
that includes findings of fact and conclusions of law. The magistrate's decision, which is
No. 14AP-968 2
appended hereto, recommends this court deny Fitzgerald's request for a writ of
mandamus. Fitzgerald filed objections to the magistrate's decision. The matter is now
before the court for our independent review. For the reasons that follow, we sustain
Fitzgerald's objections to the extent she argues the magistrate erred in finding
respondents did not abuse their discretion by rejecting her February 10, 2011 election
form, and we therefore grant the requested writ of mandamus.
I. Facts and Procedural History
{¶ 3} On February 10, 2011, Fitzgerald attempted to enroll in OP&F's DROP
program by completing and submitting the required OP&F election to enroll in DROP
form ("election form"). The election form Fitzgerald submitted had been changed in
multiple ways through the use of a white correction fluid ("whiteout"). The election form
had been changed to correct the designation of Fitzgerald's marital status at the time of
the election from "single" to "divorced," to change Fitzgerald's DROP payment plan
selection from indicating she wanted to select a payment plan to indicate she did not want
to select a payment plan, and to omit beneficiary information. The record contains a
letter dated February 11, 2011, addressed to "Ramona Boyd," indicating OP&F had
received Fitzgerald's election form, but that it was not accepted because the form was
"incomplete." Fitzgerald denies receiving the February 11, 2011 letter, which was
addressed to her former name. On April 15, 2013, general counsel for OP&F sent a letter
to Fitzgerald further explaining why she was not enrolled in DROP. General counsel
indicated that Fitzgerald's February 10, 2011 election form was not "fully and properly
completed" because it had been "altered." The next week, on April 24, 2013, Fitzgerald
completed and submitted a new election form to OP&F. Like the previously submitted
election form, on the April 24, 2013 election form, Fitzgerald's marital status was changed
from "single" to "divorced" using whiteout. This was the only change made to the
April 24, 2013 election form. OP&F accepted the new election form, and, by letter dated
July 18, 2013, informed Fitzgerald that she was enrolled in the DROP program effective
April 28, 2013.
{¶ 4} In November 2014, Fitzgerald filed her complaint in mandamus. The
magistrate rendered his decision in June 2015, and Fitzgerald timely filed objections to
the decision.
No. 14AP-968 3
II. Objections to the Magistrate's Decision
{¶ 5} Fitzgerald sets forth the following objections to the magistrate's decision:
[1.] It failed to address whether why Fitzgerald's clearly
expressed wishes regarding parameters for joining DROP
program represented by the February 10, 2011 election form,
need not be carried out;
[2.] It failed to set forth and define any fiduciary duty owed by
the Respondents (collectively "Fund") to Fitzgerald in the
treatment of the February 10, 2011 DROP program election
form, and how that fiduciary duty must be weighed against
the Fund's discretion; and,
[3.] It set forth as a major reason for supporting the denial of
benefits a reason not set forth by the Fund in the April 15,
2013 letter that referred to as the "final written decision"
being appealed in this action.
III. Discussion
{¶ 6} Because they are interrelated, we will address together Fitzgerald's three
objections. Fitzgerald's first objection asserts the magistrate did not properly consider the
fact that her intentions regarding the DROP program were clearly set forth in the
February 10, 2011 election form. Fitzgerald's second objection asserts the magistrate
erred in not finding that respondents' fiduciary duty to her required respondents to accept
the February 10, 2011 election form and enroll her in the DROP program based on that
submission. Fitzgerald's third objection alleges the magistrate erroneously fabricated a
reason for the rejection of her February 10, 2011 election form that was not set forth by
respondents. By all three of her objections, Fitzgerald generally challenges the
magistrate's decision that this court deny her request for a writ of mandamus ordering
respondents to accept her February 10, 2011 election form regarding the DROP program.
A. Applicable Law
{¶ 7} In order for a court to issue a writ of mandamus, a relator must show a clear
legal right to the requested relief, that the respondent has a clear legal duty to provide
such relief, and that there is a lack of an adequate remedy in the ordinary course of law.
See, e.g., State ex rel. Gen. Motors Corp. v. Indus. Comm., 117 Ohio St.3d 480, 2008-
Ohio-1593. "As long as there is sufficient evidence to support [a] retirement-system
No. 14AP-968 4
board's decisions, we will not disturb them." State ex rel. Grein v. Ohio State Hwy. Patrol
Retirement Sys., 116 Ohio St.3d 344, 2007-Ohio-6667, ¶ 9. But a clear legal right exists
when a retirement board abuses its discretion by entering an order which is not supported
by "some evidence." Kinsey v. Bd. of Trustees of Police & Firemen's Disability & Pension
Fund of Ohio, 49 Ohio St.3d 224, 225 (1990). "An abuse of discretion reflects an
unreasonable, arbitrary, or unconscionable attitude." State ex rel. Sawyer v. Cendroski,
118 Ohio St.3d 50, 2008-Ohio-1771, ¶ 11.
{¶ 8} The Ohio state retirement systems, including OP&F, are creatures of statute
and "can only act in strict accordance with their enabling schemes." Ohio Assn. of Pub.
School Emps. v. School Emps. Retirement Sys., 10th Dist. No. 04AP-136, 2004-Ohio-
7101, ¶ 23, citing State ex rel. Horvath v. State Teachers Retirement Bd., 83 Ohio St.3d
67, 74 (1998). However, when considering the extraordinary writ of mandamus, a court
must defer to the retirement system's interpretation of its own rules and statutes so long
as the interpretation is reasonable. State ex rel. Domhoff v. Ohio Pub. Emps. Retirement
Sys. Bd., 10th Dist. No. 12AP-245, 2013-Ohio-2513, ¶ 12, citing State ex rel. Gill v. School
Emps. Retirement Sys. of Ohio, 121 Ohio St.3d 567, 2009-Ohio-1358, ¶ 28-29. See
McAuliffe v. Bd. of Pub. Emp. Retirement Sys. of Ohio, 93 Ohio App.3d 353, 360 (10th
Dist.1994) ("[W]e should pay due deference to a reasonable construction by an
administrative agency interpreting its own rule.").
{¶ 9} R.C. 742.43 requires the board to establish and administer a DROP and to
adopt rules to implement the statutes governing DROP. To make an election to
participate in DROP, an eligible member of OP&F "shall complete and submit" to OP&F
"a form prescribed by [OP&F]." R.C. 742.44. Pursuant to the mandate of R.C. 742.43, the
board has adopted rules to implement DROP. See Ohio Adm.Code Chapter 742-4. As
pertinent here, pursuant to Ohio Adm.Code 742-4-01(B), a "DROP participant" is "an
eligible member who files the election (as hereinafter defined) with OP&F and the election
has been fully completed and properly completed by the member." This rule defines
"election" as "the election form that OP&F requires in order for a member to participate in
DROP, as such form may be amended or modified from time to time by OP&F. For those
elections that have been filed with OP&F, it shall also mean the fully and properly
completed required election that is signed by the member." Ohio Adm.Code 742-4-01(F).
No. 14AP-968 5
B. The Election Form
{¶ 10} Pursuant to R.C. 742.44, OP&F has made available a four-page form
captioned "ELECTION TO ENROLL IN DROP (Deferred Retirement Option Plan)" (the
election form). The election form contains the following instructions directly below the
form's title:
Please print in ink or type all entries except signatures. To
apply for DROP, you must submit this completed and
notarized form to OP&F. OP&F will acknowledge receipt of
your application within 10 business days of receipt. Please
note that filing this form does not guarantee DROP
participation. All applications will be subject to a
determination of eligibility by OP&F. Since OP&F will audit
your service credit, you will be notified as to whether or not
you meet the DROP eligibility requirements. OP&F will not
accept this form if it is incomplete or the signatures in
Sections D – G have been faxed, photocopied or scanned. This
entire form (pages 1-4) must be on file with OP&F and contain
original signatures.
Section A of the form requires the applying member to provide his or her identifying
information, including his or her name, address, date of birth, and marital status. Section
B of the form is captioned "Payment plan selection" and instructs the member to indicate
whether he or she wishes to select a DROP payment plan by checking the appropriate box.
"I do not want to select a payment plan" is preprinted on the form next to the first box in
Section B. "I do want to select a payment plan" is preprinted on the form next to the
second box in Section B. Section C of the form concerns DROP payment plan
beneficiaries, which is pertinent only if the member chooses to select a payment plan.
Section D is captioned "Member signature and acknowledgement," and that section
generally outlines the terms of a member's election to participate in DROP and provides
space for the electing member's signature. Section E of the form is captioned "Notary
Public requirement for member signature and acknowledgement" and provides space for
a notary to sign upon the member acknowledging the form. Sections F and G of the form
concern spousal consent and are not relevant here.
No. 14AP-968 6
C. Analysis
{¶ 11} Fitzgerald argues it was unreasonable for respondents to reject her
February 10, 2011 election form because the form clearly expresses her wishes regarding
the DROP program. In support of this argument, Fitzgerald cites Poliseno v. Mitchell,
10th Dist. No. 09AP-1001, 2010-Ohio-2615. Respondents argue they reasonably rejected
the form at issue because it had been altered in multiple areas. According to respondents,
the February 10, 2011 election form was not "fully and properly completed" as required by
the applicable administrative rules. Based on the arguments and facts presented, the
issue is whether it was an abuse of discretion for respondents to conclude that Fitzgerald's
use of whiteout to make changes to the election form, prior to its submission to OP&F,
rendered the form not "fully and properly completed" as required by the applicable
administrative rules. We find it was unreasonable for respondents to reject Fitzgerald's
February 10, 2011 election form on the basis the form had been altered prior to its
submission to OP&F.
{¶ 12} Contrary to Fitzgerald's suggestion, Poliseno is not directly on point;
however, that case does provide some guidance. In Poliseno, the issue was whether the
Ohio Public Employees Retirement System ("OPERS") had exceeded its discretion by
accepting a beneficiary designation form when the intended beneficiary's first and last
name were provided in the incorrect order and a scribe had attempted to correct the
mistake to comply with the form instructions. Id. at ¶ 17. OPERS initially rejected the
form, and then later accepted it upon determining that the alteration "was minor and the
member[']s intention was clear." Id. at ¶ 4-5, 19. This court noted that "[u]nder such
circumstances, OPERS' strict application of a zero tolerance policy itself arguably would
be arbitrary and capricious." Id. at ¶ 19. This court concluded that OPERS' acceptance of
the beneficiary designation form was within its discretionary authority to find the form
"duly executed" pursuant to the applicable statutory scheme. Id. at ¶ 13, 20.
{¶ 13} In contrast to Poliseno, this appeal concerns the rejection of a retirement
fund form that had been altered prior to its submission. However, like Poliseno, this case
implicates the concept of a "zero tolerance policy" requiring the rejection of a form even if
the member's intent is clear. There is no doubt that an election form with markings or
attempted corrections that do not clearly indicate the required information or selections
No. 14AP-968 7
would not be fully and properly completed. But that is not what occurred here.
Fitzgerald's choice not to select a payment plan as part of her enrollment in DROP is clear
based on the use of the whiteout as to the box beside "I do want to select a payment plan"
and the mark over the box beside "I do not want to select a payment plan." The form
indicates that if the member selects the option not to select a payment plan, the member
is directed to "NOT complete Sections C, F and G of this form." If the member wishes to
select a payment plan, Section C includes spaces for the designation of DROP payment
plan beneficiaries. Consistent with the change as to Fitzgerald's choice not to select a
payment plan, whiteout was used to remove the designation of a DROP payment plan
beneficiary, including the beneficiary's social security number and date of birth. That is,
by changing her selection to indicate she did not want to select a payment plan,
Fitzgerald's removal by whiteout of the beneficiary name and associated information was
consistent with the instructions on the form to not complete Section C if the member did
not wish to select a payment plan.
{¶ 14} We are unpersuaded by both the rationale given by respondents for the
rejection of Fitzgerald's February 10, 2011 election form, and the additional reasoning
introduced by the magistrate to support the rejection. The initial letter of rejection
apparently sent to Fitzgerald advised her to be "careful to avoid crossing out or whiting
out your selections." (Feb. 11, 2011 OP&F letter.) General counsel for the fund indicated
the form was rejected as not fully and properly completed because it was altered. The
general counsel's letter to Fitzgerald reflects a zero tolerance policy—any alterations
render a form not "fully and properly completed," even if the intent of the member is clear
and unmistakable. The magistrate reasoned that respondents reasonably viewed the
alterations in Sections B and C to be significant as they concern substantive and impactful
changes. In contrast, only changing the marital status marking in the member
identification section (Section A) was arguably not significant because it did not involve
Fitzgerald's selection of impactful choices as to her enrollment in DROP. The magistrate
posits that, although not stated by the general counsel, Fitzgerald's use of whiteout
"creates a legitimate concern that relator may not have been adequately informed when
she prepared the form." (Magistrate's Decision, ¶ 73.) The magistrate essentially found
No. 14AP-968 8
that respondents reasonably imposed a zero tolerance policy as to any alterations relating
to substantively significant selections on the election form.
{¶ 15} Contrary to the reasoning of respondents and the magistrate, nothing in the
statutory scheme, the applicable rules, or the election form itself, suggests that for an
OP&F election form to be fully and properly completed it must have no changes through
the use of whiteout upon being submitted. The election form contains detailed
instructions for its proper completion, including emphasizing that only original signatures
are accepted. It also requires the member's signature to be notarized. Noticeably absent
from the form is any directive or even suggestion that a member cannot make changes to
the form prior to submitting it to OP&F. Nothing in the controlling statutes and rules
precludes a member from changing her mind prior to submitting an election form and
taking steps to change her markings on the form to ensure her selections are clear upon
submission.
{¶ 16} In the final analysis, we conclude respondents abused their discretion in not
accepting Fitzgerald's February 10, 2011 election form. It was unreasonable for
respondents to reject the form on the basis there had been changes to the form prior to its
submission because Fitzgerald's intent regarding all pertinent information was clearly
presented on the submitted form and because the enabling statutes and applicable rules
do not authorize such a rejection.
IV. Disposition
{¶ 17} Based on the foregoing, we sustain Fitzgerald's objections to the
magistrate's decision to the extent she argues the magistrate erred in finding respondents
did not abuse their discretion when they rejected Fitzgerald's February 10, 2011 election
form. We adopt the factual findings of the magistrate, but we reject the magistrate's
conclusions of law. Because respondents' rejection of Fitzgerald's form constituted an
abuse of discretion, Fitzgerald's request for a writ of mandamus is granted. OP&F and the
board are directed to accept Fitzgerald's election form as having been filed on
February 10, 2011.
Objections sustained; writ granted.
TYACK and HORTON, JJ., concur.
No. 14AP-968 9
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Ramona K. Fitzgerald, :
Relator, :
v. : No. 14AP-968
Board of Trustees of Ohio Police & : (REGULAR CALENDAR)
Fire Pension Fund and Ohio Police &
Fire Pension Fund, :
Respondents. :
MAGISTRATE'S DECISION
Rendered on June 24, 2015
Law Offices of Gary A. Reeve, LLC, and Gary A. Reeve, for
relator.
Michael DeWine, Attorney General, and John J. Danish, for
respondents.
IN MANDAMUS
{¶ 18} In this original action, relator, Ramona K. Fitzgerald, requests a writ of
mandamus ordering respondent, Ohio police and fire pension fund ("OP&F" or "fund"),
and the OP&F board of trustees ("board"), to accept the election form Fitzgerald
submitted on February 10, 2011 regarding the deferred retirement option plan.
Findings of Fact:
{¶ 19} 1. Pursuant to R.C. 742.43, the board shall establish and administer a
deferred retirement option plan ("DROP").
No. 14AP-968 10
{¶ 20} 2. Pursuant to R.C. 742.44, to make an election to participate in DROP, an
eligible member of the fund "shall complete and submit" a form prescribed by the fund.
{¶ 21} 3. Pursuant to R.C. 742.44, OP&F provides a four-page form captioned
"ELECTION TO ENROLL IN DROP (DEFERRED RETIREMENT OPTION PLAN)."
{¶ 22} The form is divided into six sections. Pertinent here are the four sections
designated sections A through E.
{¶ 23} Above Section A, the following preprinted instructions provide:
Please print in ink or type all entries except signatures. To
apply for DROP, you must submit this completed and
notarized form to OP&F. OP&F will acknowledge receipt of
your application within 10 business days of receipt. Please
note that filing this form does not guarantee DROP
participation. All applications will be subject to a
determination of eligibility by OP&F. Since OP&F will audit
your service credit, you will be notified as to whether or not
you meet the DROP eligibility requirements. OP&F will not
accept this form if it is incomplete or the signatures in
Sections D - G have been faxed, photocopied or scanned.
This entire form (pages 1-4) must be on file with OP&F and
contain original signatures.
{¶ 24} Section A is captioned "Member Information." In Section A, the applicant is
asked to provide her name and address. On the form at issue, "Ramona K. Fitzgerald" is
written by hand as the applicant's name. The applicant's address is written "7723
Sherridon Drive, Blacklick, Ohio, 43004."
{¶ 25} Also, the applicant is asked to mark one of four boxes that describes
"[m]arital status at time of application." There is a box aside "Single," "Married,"
"Divorced," and "Widowed."
{¶ 26} On the form relator submitted to OP&F on February 10, 2011, it appears
that the "Single" box was whited out using white correction fluid and the box was redrawn
without a mark to show that the "Single" box is intended to be unmarked.
{¶ 27} The box aside "Divorced" is marked by an X placed over the box.
{¶ 28} 4. Section B of the form is captioned "Payment plan selection." In Section
B, the applicant is instructed to "[c]hoose whether or not you want to select a payment
plan by checking the box next to your selection below."
No. 14AP-968 11
{¶ 29} Below the instructions for Section B, two boxes are provided. "I do not want
to select a payment plan" is preprinted on the form aside the first box.
{¶ 30} "I do want to select a payment plan" is preprinted on the form aside the
second box.
{¶ 31} On the form at issue in Section B, it appears that the second box was whited
out using white correction fluid and the box was redrawn without a mark to show that the
second box is intended to be unmarked.
{¶ 32} The first box is marked with an X placed over the box.
{¶ 33} 5. Section C of the form at issue is captioned "DROP payment plan
beneficiaries." The form permits the applicant to designate up to four beneficiaries
designated as "Beneficiary #1" through "Beneficiary #4."
{¶ 34} Under "Beneficiary #1," the form permits the applicant to enter the
beneficiary's name, address, social security number, and date of birth. On the form at
issue, it appears that the spaces provided for the beneficiary's name, social security
number, and date of birth were whited out using white correction fluid to indicate that no
beneficiary is designated.
{¶ 35} All the spaces provided for a "Beneficiary #2" through "Beneficiary #4" are
left blank in the form at issue.
{¶ 36} 6. Section D of the form is captioned "Member signature and
acknowledgement." Section D provides spaces for the "Member's signature" and "Date of
signature." On the form at issue, the signature of Ramona K. Fitzgerald appears. Also,
the signature is dated "02/10/11."
{¶ 37} 7. Section E of the form, is captioned "Notary Public requirement for
member signature and acknowledgement." The form at issue was notarized on February
10, 2011.
{¶ 38} 8. On February 10, 2011, relator filed with OP&F the form as described
above.
{¶ 39} 9. The record contains a letter dated February 11, 2011 from OP&F
Transactions Specialist, Yvette Kellam. The letter is addressed as follows:
Ramona Boyd
7723 Sherridon Dr.
No. 14AP-968 12
Blacklick, OH 43004-8178
10. The letter states:
The Ohio Police & Fire Pension Fund ("OP&F") is in receipt
of your Election to Enroll in DROP (Deferred Retirement
Option Plan). In reviewing your form, we noticed that your
selection has been altered. OP&F cannot accept your
application because it is incomplete. To avoid any processing
delays, please complete the enclosed Election to Enroll in
DROP, being careful to avoid crossing out or whiting out
your selections, and return the notarized form to our office
as soon as possible.
{¶ 40} 10. According to relator, she never received the February 11, 2011 letter.
{¶ 41} 11. Earlier, on January 29, 2001, relator completed a written request from
OP&F's customer service department addressed to "Ramona Boyd." The request asked
relator to provide her name and current address, and to sign and date the document.
{¶ 42} On the OP&F request, relator gave her name as Ramona K. Fitzgerald and
her current address as: "7723 Sherridon Trail Drive, Blacklick, Ohio, 43004."
{¶ 43} The document was signed by relator as Ramona K. Fitzgerald and dated
January 29, 2001.
{¶ 44} 12. Earlier on January 8, 2001, relator completed a form provided by the
City of Columbus, Division of Fire captioned "Personnel Record Change." On the form,
"Ramona K. Fitzgerald" indicates by her mark that, effective November 22, 2000, she has
had a change in her marital status to "divorced." She also indicated a change in her
address to: "7723 Sherridon Trails Dr., Blacklick, Ohio, 43004."
{¶ 45} 13. The record contains a letter to OP&F dated September 18, 2012 from
Ramona K. Fitzgerald. In the letter, relator states that she is enclosing a copy of her
decree of divorce and that she is requesting OP&F to change all records to reflect her
current name. The enclosed decree of divorce was issued by the Franklin County Court of
Common Pleas, Division of Domestic Relations. The decree acknowledges a November
22, 2000 court hearing and provides that relator "shall be restored to her former name of
Ramona K. Fitzgerald."
{¶ 46} 14. Apparently, on March 18, 2013, relator visited OP&F offices to inquire
as to why she was not enrolled in the DROP program.
No. 14AP-968 13
{¶ 47} 15. By letter dated April 15, 2013, via certified mail, return receipt
requested, relator was informed by OP&F general counsel Mary Beth Foley:
I am writing in response to your inquiry as to why you are
not enrolled in the Deferred Retirement Option Plan
("DROP").
Ohio Revised Code Section 742.44 provides that, to make a
DROP election, an eligible member must complete and
submit to OP&F "a form prescribed by the fund." Rule 742-4-
01(E) [sic], of the Ohio Administrative Code provides that a
DROP "election" means the "fully and properly completed
required election that is signed by the member." Emphasis
added.
According to our records, you submitted an Election to
Enroll in DROP form to OP&F on February 10, 2011. A copy
of this form is enclosed for your reference. OP&F staff sent a
letter to you on February 11, 2011 to inform you that your
DROP election form had been altered and that,
consequently, you would need to complete and submit a new
DROP election form to OP&F. I have enclosed a copy of
OP&F's letter for your reference. However, OP&F did not,
and has not, received a fully and properly completed Election
to Enroll in DROP form from you. Therefore, you have not
been enrolled in DROP and are not enrolled in DROP.
When you visited our office and raised this issue on
March 18, 2013, an OP&F Customer Service representative
provided you with copies of the enclosed documentation. At
that time, you stated that you did not receive the letter that
OP&F sent to you on February 11, 2011. That letter was
mailed to you at the following address: 7723 Sherridon
Drive, Blacklick, Ohio 43004. Our records show that this is
currently your mailing address and has been your mailing
address since January 14, 2011, when you had contacted
OP&F to update your address.
If you wish to participate in DROP, you will need to complete
the enclosed Election to Enroll in DROP form and submit it
to OP&F. If the form is fully and properly completed, your
eligibility to participate in DROP will then be determined
and you will be notified as to whether or not you meet the
plan's eligibility requirements. If you meet these eligibility
requirements, the effective date of your DROP election will
be the first day of the employer's first payroll period
immediately following OP&F's receipt of the Election to
No. 14AP-968 14
Enroll in DROP form, as required by Ohio Revised Code
Section 742.44.
(Emphasis sic.)
{¶ 48} 16. On April 24, 2013, relator filed with OP&F another election form
executed by relator on April 23, 2013 and notarized the same day.
{¶ 49} Under Section A of the form, as was the case with the form filed on February
10, 2011, the "Single" box was whited out using white correction fluid and the box was
redrawn without a mark to show that the "Single" box is intended to be unmarked.
{¶ 50} The box aside "Divorced" is marked by an X placed over the box just as was
the case of the February 10, 2011 form.
{¶ 51} However, the April 24, 2013 form differs substantially from the February 10,
2011 form because there was no use of white correction fluid or other types of alteration at
Sections B or C.
{¶ 52} 17. By letter dated April 29, 2013 from OP&F Transaction Specialist, Yvette
Kellam, relator was informed:
OP&F is pleased to verify that your DROP Election Form was
received on April 24, 2013.
OP&F will conduct a thorough review of your file to
determine your eligibility for the Deferred Retirement
Option Plan (DROP). Upon completion of this review, OP&F
will send written correspondence to you with your DROP
effective date and base pension amount to be credited to
DROP. Please note that you must meet the qualifications
outlined in the Guide to Deferred Retirement Option Plan
(DROP) in order to receive any benefits that you may
accumulate during your DROP participation.
Please note that this notice does not guarantee DROP
eligibility or participation. All elections will be subject to a
determination of eligibility by OP&F based on the terms of
the Ohio Revised Code and OP&F's administrative rules. You
may cancel your DROP election within 30 days of OP&F's
receipt of your Election Form, which is the date referenced in
the first sentence of this letter.
No. 14AP-968 15
{¶ 53} 18. By letter dated July 18, 2013, OP&F informed relator that she is enrolled
in the DROP program effective April 28, 2013.
{¶ 54} 19. On November 21, 2014, relator, Ramona K. Fitzgerald, filed this
mandamus action.
Conclusions of Law:
{¶ 55} The issue is whether respondents abused their discretion in refusing to
accept the DROP election form relator submitted on February 10, 2011.
{¶ 56} Finding no abuse of discretion, it is the magistrate's decision that this court
deny relator's request for a writ of mandamus, as more fully explained below.
{¶ 57} R.C. 742.43 provides that: "[t]he board of trustees of the Ohio police and
fire pension fund shall establish and administer a deferred retirement option plan."
{¶ 58} R.C. 742.43 further provides that: "[t]he board shall adopt rules to
implement this section and sections 742.44 to 742.446 of the Revised Code."
{¶ 59} On February 10, 2011, the date relator submitted the DROP election form at
issue, R.C. 742.44 provided:
[A]t any time prior to filing an application for retirement
under division (C)(1) of section 742.37 of the Revised Code, a
member who is eligible to retire under that division may
elect to participate in the deferred retirement option plan
established under section 742.43 of the Revised Code.
To make an election, an eligible member shall complete and
submit to the Ohio police and fire pension fund a form
prescribed by the fund.
***
The effective date of an election made under this section is
the first day of the employer's first payroll period
immediately following the board's receipt of the notice of
election.
{¶ 60} On February 10, 2011, the date relator submitted the DROP election form at
issue, and currently, Ohio Adm.Code 742-4-01, captioned "General DROP Definitions,"
provides:
No. 14AP-968 16
(B) A "DROP Participant" shall mean an eligible member
who files the election (as hereinafter defined) with OP&F and
the election has been fully completed and properly
completed by the member.
(C) "OP&F" shall mean the Ohio police and fire pension fund
created under Chapter 742. of the Revised Code.
(F) "Election" shall mean the election form that OP&F
requires in order for a member to participate in DROP, as
such form may be amended or modified from time to time by
OP&F. For those elections that have been filed with OP&F, it
shall also mean the fully and properly completed required
election that is signed by the member.
{¶ 61} Analysis begins with the observation that the April 15, 2013 letter from
respondent's general counsel is the final written decision of respondents. Essentially, the
letter sets forth the factual findings, the legal authority, and the legal reasoning of
respondents in refusing to accept relator's February 10, 2011 election form.
{¶ 62} The April 15, 2013 decision is premised upon R.C. 742.44's requirement
that, to make an election, an eligible member "shall complete and submit * * * a form
prescribed by the fund." Also, the decision is based upon Ohio Adm.Code 742-4-01(F),
which supplements the statute and provides that an election shall mean the "fully and
properly completed required election that is signed by the member."
{¶ 63} In the April 15, 2013 decision, the general counsel notes that OP&F staff
sent a letter to relator on February 11, 2011 to inform that "your DROP election form had
been altered" and that, consequently, a new form must be submitted.
{¶ 64} While the April 15, 2013 general counsel's letter itself fails to explain the
alteration, the February 11, 2011 letter explains:
In reviewing your form, we noticed that your selection has
been altered. OP&F cannot accept your application because
it is incomplete. To avoid any processing delays, please
complete the enclosed Election to Enroll in DROP, being
careful to avoid crossing out or whiting out your selections.
{¶ 65} Clearly, the February 11, 2011 OP&F letter is correct in observing that the
February 10, 2011 election form presents the "whiting out" of initial selections.
No. 14AP-968 17
{¶ 66} Thus, the general counsel's April 15, 2013 letter, in effect, identifies the
"whiting out of your selections" as the alterations that concerned the general counsel and
persuaded her to reject the February 10, 2011 election. Also, the general counsel
concluded that the election form was not "fully and properly completed" pursuant to Ohio
Adm.Code 742-4-01(F) because of the alterations.
{¶ 67} State retirement systems are creatures of statute and " 'can only act in strict
accordance with their enabling schemes.' " Poliseno v. Mitchell, 10th Dist. No. 09AP-
1001, 2010-Ohio-2615, quoting Ohio Assn. of Pub. School Emp. v. School Emp.
Retirement Sys., 10th Dist. No. 04AP-136, 2004-Ohio-7101, ¶ 23.
{¶ 68} Public retirement systems, nonetheless, are entitled to due deference in
interpreting their own statutes and rules. Poliseno at ¶ 12, citing State ex rel. Schaengold
v. Pub. Emp. Retirement Sys., 114 Ohio St.3d 147, 2007-Ohio-3760 at ¶ 23.
{¶ 69} Here, as indicated by the April 15, 2013 letter that refers to the February 11,
2011 staff letter, the general counsel expressed her concern regarding the alterations on
the February 10, 2011 election form submitted by relator. That concern regarding
alterations was, by reference, made more specific in the February 11, 2011 staff letter that
instructed that relator prepare another election form "being careful to avoid crossing out
or whiting out your selections."
{¶ 70} As earlier noted, the February 10, 2011 election form contained whiteout at
three sections of the form. At Section A, whiteout was used to cover the initial marking of
the "Single" box so that the "Divorced" box could be marked instead.
{¶ 71} At Section B, whiteout was used to cover the initial marking of the box aside
"I do want to select a payment plan" so that the box aside "I do not want to select a
payment plan" could be marked instead.
{¶ 72} At Section C, whiteout was used to cover an initial designation of a
beneficiary including that beneficiary's social security number and date of birth such that
no beneficiary is designated.
{¶ 73} While not specifically so stated by the general counsel, the multiple use of
whiteout to change initial selections at three sections of the form, where those changes
present significant substantive changes, creates a legitimate concern that relator may not
No. 14AP-968 18
have been adequately informed when she prepared the form. Thus, it was well within the
discretion of the general counsel to uphold the initial staff determination to refuse
acceptance of the February 10, 2011 election form and to inform relator that a new
election form must be completed in order for DROP benefits to begin.
{¶ 74} Relator argues that respondent's acceptance of the April 24, 2013 election
form is inconsistent with rejection of the February 10, 2011 election form because the
April 24, 2013 election form presented the same whiteout alteration at Section A as is
found on the February 10, 2011 election form.
{¶ 75} Because the February 10, 2011 election form and the April 24, 2013 form
presented very different scenarios, respondents were clearly not inconsistent in accepting
the latter election form over the earlier one.
{¶ 76} As earlier noted, Section A as to both forms, presents whiteout over the
"Single" box so that the "Divorced" box can be marked as the selection. Apparently,
respondents did not find this to be a significant or substantial problem because the latter
election form was accepted notwithstanding the use of whiteout at Section A.
{¶ 77} In a sense, one who is "Divorced" but not remarried is "Single" again. Thus,
while marking the "Divorced" box was the more accurate selection, the initial marking of
the "Single" box was not inaccurate. Significantly, Section A of the election form is
provided for member identification. That is, Section A is not used for the applicant's
selection of important choices under the DROP program. That is, whether or not to select
a payment plan under Section B and whether or not to designate a beneficiary are indeed
significant substantive selections not found under Section A. Therefore, it was not
inconsistent for respondents to accept the April 24, 2013 election form, and reject the
February 10, 2011 election form.
{¶ 78} Asserting that she never received the February 10, 2011 letter informing that
her election form was not accepted, relator endeavors to lay fault upon respondents by
pointing out that the letter was addressed to Ramona Boyd which was relator's married
name prior to her divorce in November 2000.
{¶ 79} As earlier noted, on January 29, 2001, relator completed a written request
for OP&F's customer service department on which she indicated that her name is Ramona
No. 14AP-968 19
K. Fitzgerald. Also, relator listed her address as "7723 Sherridon Trail Drive, Blacklick,
Ohio, 43004."
{¶ 80} Also, on January 8, 2001, relator completed the form provided by the City of
Columbus, Division of Fire on which she indicated a change in her marital status to
"Divorced." On that form, relator also listed the same address as found on the
January 29, 2001 document.
{¶ 81} Clearly, OP&F should have been aware on February 11, 2011 that the
currently correct name is Ramona K. Fitzgerald and not Ramona Boyd.
{¶ 82} Here, the magistrate notes a discrepancy between the street address listed
on the January 8, 2001 and January 29, 2001 documents, and the street address listed on
the February 11, 2011 letter, which was : "7723 Sherridon Dr., Blacklick, Ohio, 43004-
8178."
{¶ 83} Relator here does not mention the discrepancy between "7723 Sherridon
Dr." and "7723 Sherridon Trail Drive."
{¶ 84} Relator's focus here on the name discrepancy on the February 11, 2011 letter
is misplaced. Undisputedly, the presumption is the U.S. Postal Service would have
delivered the letter to the address presented on the letter's envelope regardless of the
name used with the address.
{¶ 85} Relator says she never received the February 11, 2011 letter. The record here
strongly suggests that the letter was sent. However, we do not need to determine why the
letter was not received as relator asserts. Clearly, relator has failed to show that
respondents' staff was at fault for the alleged non-receipt of the February 11, 2011 letter.
{¶ 86} Based upon the foregoing analysis, the magistrate concludes that relator has
failed to show that respondents abused their discretion in refusing to accept the DROP
election form relator submitted on February 10, 2011.
{¶ 87} Accordingly, it is the magistrate's decision that this court deny relator's
request for a writ of mandamus.
/S/ MAGISTRATE
KENNETH W. MACKE
No. 14AP-968 20
NOTICE TO THE PARTIES
Civ.R. 5 3(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).