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Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Jan 28 4:33 PM-19CV007506
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IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
STATE OF OHIO, ex rel. 3
CYNTHIA L. RICHSON, 3 Case No. 19 CV 7506
Relator, : JUDGE DAN HAWKINS
vs.
THE OHIO PUBLIC EMPLOYEE
RETIREMENT SYSTEM,
Respondent.
BRIEF OF RESPONDENT,
OHIO PUBLIC EMPLOYEES RETIREMENT SYSTEM
DAVE YOST (0056290) Thomas L. Rosenberg (0024898)
Ohio Attorney General Roetzel & Andress, LPA
41 South High Street
SAMUEL A. PEPPERS, III (0062187) Huntington Center, 21st Floor
Pension Counsel Columbus, OH 43215
MARY THERESE J. BRIDGE (614) 463-9770
(00092232) (614) 463-9792 — Fax
Associate Assistant Attorney General trosenberg@ralaw.com
Outside Counsel Section Counsel for Relator
30 East Broad Street, 17th Floor
Columbus, Ohio 43215
(614) 728-3546
(866) 769-6915 — Fax
Samuel .Peppers@OhioA ttorney
General.Gov
MaryTherese.Bridge@Ohio
AttorneyGeneral.Gov
Counsel for Respondent
Ohio Public Employees
Retirement SystemFranklin County Ohio Clerk of Courts of the Common Pleas- 2021 Jan 28 4:33 PM-19CV007506
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INTRODUCTION
A basic principle underlies OPERS retirement benefits— an OPERS member must have five
years of contributing service with an OPERS employer in order to be eligible to receive OPERS
retirement benefits. Once this minimum threshold is met, an OPERS member is free to combine
other eligible service credit to increase their service credit and enhance their retirement benefit. In
this case, Relator does not have five years of contributing service with an OPERS employer
Therefore, she is not eligible for an OPERS retirement.
By her own admission, Relator failed to reach this minimum standard. Relator worked for
OPERS from June 2003 until 2006. (Certified Record of Proceedings (“CR”) p. 091-094),
(Relator’s brief at 1). This service with OPERS earned Relator 2.999 years of contributing service
credit. (CR. 040). Relator also purchased 2.666 years of service credit based on her position with
the state of Wisconsin, giving her a total of 5.665 years of Total Service Credit (as opposed to
contributing service credit). (CR. 040, 076-085). The inquiry stops there. Relator had 2.999 years
of contributing service and, pursuant to statute, is ineligible for an OPERS retirement. Therefore,
Relator’s request for a writ of mandamus should be denied.
STATEMENT OF THE FACTS AND CASE
Relator worked at OPERS from June 2003 through 2006. (CR. 091-094), (Relator’s brief
at 1). While employed at OPERS, Relator purchased 2.666 years of service credit based on her
prior employment with the State of Wisconsin. (CR. 076-085, 040). Through her employment at
OPERS and purchase of out of state service (COO8"), Relator accrued 5.665 years of Total Service
Credit - comprised of 2.999 years of contributing service credit (service with OPERS) and 2.666
years of OOS credit (time purchased for service to the state of Wisconsin). (CR. 040). Relator
attempted but was denied the opportunity to retire because she had not accrued five years ofFranklin County Ohio Clerk of Courts of the Common Pleas- 2021 Jan 28 4:33 PM-19CV007506
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contributing service credit. (CR. 100). Relator subsequently initiated this original action in
mandamus, requesting the Court issue the extraordinary writ of mandamus to compel OPERS to
accept her retirement application and to provide her with retirement benefits.
LAW AND ARGUMENT
A. Standard of Review
Relator has a heavy burden of proof. Relator must show that there is no evidence
supporting OPERS’ decision that she is not entitled to apply for or receive retirement benefits. In
order for a writ to issue, Relator must provide evidence that is plain, clear, and convincing showing
that she had a clear legal right to apply for and receive retirement benefits, that OPERS has a clear
legal duty to accept her application and provide her retirement benefits, and that she has no
adequate remedy at law. See State ex rel. Pressley v. Indus. Comm. of Ohio, 11 Ohio St.2d 141,
161, 228 N.E.2d 631 (1967) and State ex rel. Solomon v. Bd. of Trustees of the Police & Firemen's
Disability & Pension Fund, 72 Ohio St.3d 62, 64, 647 N.E.2d 486 (1995)
“A clear legal right exists where the board abuses its discretion by entering an order which
is not supported by ‘some evidence.’”” See Kinsey v. Bd. of Trustees of the Police & Firemen’s
Disability & Pension Fund of Ohio, 49 Ohio St.3d 224, 225, 551 N.E.2d 989 (1990). “Abuse of
discretion” means the Board acted in a manner that was unreasonable, arbitrary, or unconscionable.
State ex rel. Pipoly v. State Teachers Retirement Sys., 95 Ohio St.3d 327, 2002-Ohio-2219, 767
N.E.2d 719, § 14. Ohio Courts have consistently held that a decision by a retirement system board
will not be disturbed where there is “some evidence” supporting the decision. See State ex rel.
Marchiano v. School Emps. Retirement Sys., 121 Ohio St.3d 139, 2009-Ohio-307, 902 N.E.2d 953,
4] 20-21. “Only if the board’s decision is not supported by any evidence will mandamus lie.”
State ex rel. Woodman v. Ohio Pub. Emps. Retirement Sys., 144 Ohio St.3d 367, 2015-Ohio-3807,Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Jan 28 4:33 PM-19CV007506
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43 N.E.3d 426, | 17 (emphasis in original). Relator cannot show that there was not some evidence
supporting OPERS’ decision that she is not eligible to apply for and to receive retirement benefits,
and thereby she has no clear legal right to relief.
The state retirement systems, including OPERS, are creatures of statute and can only act
in strict accordance with their enabling schemes. Cosby v. Cosby, 96 Ohio St.3d 228, 2002-Ohio-
4170, 773 N.E.2d 516, 19 (“STRS benefits are governed exclusively by statute.”); Dreger v. Pub.
Emps. Retirement Sys., 34 Ohio St. 3d 17, 20-21, 516 N.E.2d 214 (1987) (“As a creature of statute,
[the Police & Firemen’s Disability and Pension Fund] has no authority beyond that which is
expressly conferred by statute.”); Hansford v. Pub. Emps. Retirement Sys., 170 Ohio App.3d 603,
2007-Ohio-1242, 868 NE.2d 708, { 9 (10" Dist.) (‘[U]nless its governing statutes grant the
authority, OPERS is powerless to perform the act.”); Ohio Pub. Emps. Retirement Sys. v. Coursen,
156 Ohio App.3d 403, 2004-Ohio-1229, 806 N.E.2d 197, J 7 (“As a retirement system created by
statute, PERS can only pay benefits as specifically provided by statute.”)
Accordingly, in order for Relator to succeed on her claims, Relator must point to a clear
legal duty created by statute or rule compelling OPERS to allow her to apply for and receive the
disputed retirement benefits.
B. The decision of OPERS is not an abuse of discretion because it is supported by more
than “some evidence”.
Relator challenges OPERS’ determination that Relator is not eligible to apply for OPERS
retirement and to receive OPERS retirement benefits. This challenge fails because OPERS’
decision was simply an operation of law and there is more than some evidence to support that
decision
1. An OPERS member must have accrued five years of contributing service
credit in order to retire.Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Jan 28 4:33 PM-19CV007506
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RC. section 145.32(B)(1)(a) provides that a member is eligible to retire if the member
*! RC. section
“{hjas five or more years of total service credit and has attained age sixty.
145.016(C)(1) states, “for the purpose of satisfying the service credit requirement and determining
eligibility for benefits under [R.C.] sections 145.32 . . . “five or more years of total service credit”
means five or more years of contributing service.” R.C. 145.01(T) defines “contributing service”
as any service “for which contributions are made as required by sections 145.47, 145.48...”. R.C.
sections 145.47 and 145.48 describe the amounts that a public employee and public employer must
contribute to OPERS based on the public employee’s earnable salary
Said differently, in order to be eligible for an OPERS retirement, Relator must have accrued
at least five years of contributing service as opposed to five years of total service credit. Relator
not only fails to deny that she did not accrue five years of contributing service, but she readily
admits it. Relator admits her Benefits Statement indicated she had a total of 2.999 years of
contributing service credit and 2.666 years of OSS credit that she purchased. (Relator’s brief at 2,
7). Relator does not have the requisite five years of contributing service credit to retire.
A reading of Ohio Revised Code shows that OPERS did not abuse its discretion. As
described above, five years of OPERS contributing service credit are required for a member to
receive OPERS retirement benefits. Relator does not have five years of OPERS contributing
service. Therefore, OPERS’ decision to deny Relator’s request to apply for retirement benefits is
based on the law and is supported by ample evidence.
1 After SB 343, effective January 7, 2013, there are three “groups” of retirement eligibility
requirements. See, R.C. 145.32(A), (B), and (C). Relator falls into “Group B” or R.C. 145.32(B),
which Relator does not dispute. However, the same five years of contributing service credit
eligibility requirement is present in R.C. 145.32(A)(1), (B)(1)(a), and (C)(1). As such, the
arguments contained herein equally applies to each of the corresponding five-year requirements.
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To overcome the plain reading of the Revised Code, Relator misinterprets and partially
quotes several Revised Code sections in her brief. Relator’s argument, while incorrect, is
straightforward. Relator claims that R.C. 145.32 only requires five years of “total service credit”
to be eligible to retire, and writes in her Brief:
R.C. 145.01(H)(1) states in part
Total service credit...means all service credited to a member of the retirement
system...including credit purchased under sections 145.293 and 145.299 of the
Revised Code...and any other service credited under this chapter.
(Relator’s Brief at 5, emphasis in original).
Relator parlays this definition into the argument that: 1. Out of state service counts toward
total service credit (to which OPERS agrees after a member has accrued five years of contributing
service); and 2. There is no mention of “contributing service” in R.C. 145.32; therefore, OPERS’
argument requiring contributing service is misguided. Relator’s argument suffers one fatal flaw —
while ellipses are helpful in writing quotations, they lose their effectiveness when omitting vital
information.
Relator’s ellipses omit the following from the definition of total service credit: “’Total
service credit,’ except as provided in sections 145.016 and 145.37 of the Revised Code, means...”
(emphasis added). It is the omission of “except as provided in sections 145.016...” that is
problematic to her claim. As stated above, it is “145.016... of the Revised Code” which states
“for the purpose of... determining eligibility for benefits under sections 145.32... of the Revised
Code, ‘five or more years of total service credit’ means five or more years of contributing
service...” R.C. 145.016(C)(1). Therefore, for the purposes of R.C. 145.32 and pursuant to the full
definition of Total Service Credit found at R.C. 145.01(H), Relator does not have five years of
contributing service OR total service credit; therefore, she is not eligible for retirement benefits
And, her own admission of this fact is “some evidence” to support OPERS’ decision.Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Jan 28 4:33 PM-19CV007506
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2. Relator misinterprets Ohio Revised Code.
Relator next argues that R.C. 145.016 and the requirement that she have at least five years
of contributing service does not apply to her. (Relator’s brief at 6 and 7). Her argument, again
incorrect but straightforward is: R.C. 145.016(C)(2) exempts her from the purview of R.C. 145.016
because it states “A member, who as of the effective date of this amendment, has sixty or more
months of contributions and has attained sixty years of age shall be considered to have five or more
years of total service credit...” R.C. 145.016(C)(2). This argument fails for two reasons.
First, “this amendment” was House Bill 572, which became effective March 22, 2019.
HB. 572 removed from R.C. 145.01(H) (the definition of “Total Service Credit”) the clause: “For
the exclusive purpose of... determining eligibility for benefits under sections 145.32... of the
Revised Code, ‘five or more years of total service credit’ means sixty or more calendar months of
contributing service in this system.” (Emphasis added). See Legislation Text As Enrolled, pgs
2-3, https://www. legislature. ohio. gov/legislation/legislation-documents?id=GA 132-HB-572
(accessed Jan. 28, 2021). At the same time, H.B. 572 added to R.C. 145.016(C)(1), which, as
detailed above, states “’five or more years of total service credit’ means five or more years of
contributing service...” The amendment to the statute was from sixty months of contributing
service to five years of contributing service.
This change is not without consequence. For the reasons below, the consequences are
beyond the scope of this brief. For instance, a person could earn $125 each month for the year in
2012. Pursuant to R.C. 145.016(A) that member would have 12 months of contributions, but only
have earned % year (or six months) of contributing service credit because R.C. 145.016(A)(2)
prorates that service. So, prior to March 22, 2019, a member need only have some contributing
service in 60 calendar months regardless of any proration. After March 22, 2019, a member must
have contributed enough to actually earn five years of contributing service.
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R.C. 145.016(C)(2) did nothing more than “grandfather” those that had reached the 60
months of contributing service AND were at least age 60 by March 22, 2019. All other members
were required to meet the five-year standard. Relator did not have 60 months or five years or
contributing service on March 22, 2019. And, even if she had 60 months of contributing service
on March 22, 2019, which she did not, she did not turn sixty until June 26, 2019, so this exception
would not apply to her. Again, it is simple, Relator needs five years of contributing service to be
eligible to retire. Simply stated, Relator only has 2.999 years of contributing service credit. She
does not meet the requirement to be eligible to apply for and receive a retirement benefit.
C. —_Relator’s interpretation of Benefits Statements, her OPERS online account, and
Revised Code is meritless.
A review of the Benefit Statements show that Relator’s claim is without merit. As Relator
admits in her brief, the Benefits Statement for 2007 shows that Relator accrued “Total
Contributing” service of 2.999 and “Total Purchased” service (or OOS) of 2.666. (Relator’s brief
at 2), (CR. 040). The Benefits Statement goes on to explain “Members are eligible to retire at age
60 with at least five years or 60 months of contributing service credit...” (emphasis added). (CR.
037). The Benefits Statement for 2007 states that OPERS members are eligible to retire if they
have at least five years of contributing service credit. So, even if Relator could claim detrimental
reliance to overcome the clear requirement set forth in the statute, which she cannot, she has no
basis for it based on the language of the Benefits Statements. Moreover, the Benefits Statements
contain language to convey that the statements do not contain the final evaluation of the member’ s
eligibility to apply for and receive a retirement benefit. The Benefits Statements declare that the
information is “estimated”, “projected”, and “not a guarantee”. (CR. 039, 037). For example, the
Benefits Statement for 2007 statedFranklin County Ohio Clerk of Courts of the Common Pleas- 2021 Jan 28 4:33 PM-19CV007506
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The following graph and chart will provide you with an estimate of what your
retirement benefit would be if you chose a Single Life Benefit (Plan B). This
projection is based on a number of assumptions which can change at any time,
resulting in an increase or decrease in your annual benefit amount.
(emphasis added) (CR. 041). Additionally, the Benefits Statement says, “Plan benefits are subject
to state and federal law changes. This statement simply provides an overview of your estimated
benefits and it not a guarantee of the type or amount of your benefits.” (CR. 037). The Benefits
Statement clearly indicates the information on the statement is not a final guarantee of retirement
eligibility or benefits.
Further, the screenshot that Relator took of her OPERS online account shows the
breakdown of her contributions and service credit. Relator’s Exhibit F. The image shows
Relator’s Purchased Service Credit to be 2.667, her Contributing Service to be 3.000, and her Total
Service Credit to be 5.667. /d. The image shows that she does not have over five years of
contributing service credit. The screenshot that Relator produced does not state in any way that
Relator is eligible for retirement. /d. Indeed, the screen shot of Relator’s online account supports
OPERS’ determination that Relator did not meet the necessary requirement to be eligible to apply
for a retirement benefit.
While the Relator continues to rely on her Benefits Statements and the screen shots from
her online account, these do not reflect that she met the requirements to be eligible to apply for
retirement or contain the final calculation of a retirement benefit, assuming she had met the
threshold requirements to be eligible to receive a retirement benefit. The Benefits Statements, as
well as the information found on her online account, only provide an estimate as to when she could
retire and the benefit she might receive.
To the extent that Relator is attempting to raise estoppel as a claim, it is not available as a
claim against OPERS. The Supreme Court has explicitly found that the statements of governmentFranklin County Ohio Clerk of Courts of the Common Pleas- 2021 Jan 28 4:33 PM-19CV007506
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employees, even when relied upon to the detriment of a moving party, cannot bind the
governmental entity.
This court has held, “It is well-settled that, as a general rule, the principle of
estoppel does not apply against a state or its agencies in the exercise of a
governmental function.” Ohio State Bd. of Pharmacy v. Frantz (1990), 51 Ohio
St.3d 143, 145-146, 555 N.E.2d 630. See, also, Sekerak v. Fairhill Mental Health
Cir. (1986), 25 Ohio St.3d 38, 25 OBR 64, 495 N.E.2d 14, and Bes/ Corp. v. Pub.
Util. Comm. (1976), 45 Ohio St.2d 146, 150, 74 0.0.2d 262, 341 N.E.2d 835. The
Hortmans claim that because this court has inserted the words “generally” or “as a
general rule” when discussing the principles of estoppel, this case may be the
exception to that general rule. We disagree and hold that the doctrines of equitable
estoppel and promissory estoppel are inapplicable against a political subdivision
when the political subdivision is engaged in a governmental function. Sun Refining
& Marketing Co. v. Brennan (1987), 31 Ohio St.3d 306, 31 OBR 584, 511 N.E.2d
112; State ex rel. Chevalier v. Brown (1985), 17 Ohio St.3d 61, 17 OBR 64, 477
N.E.2d 623.
Hortman v. City of Miamisburg, 110 Ohio St.3d 194, 2006-Ohio-4251, 852 N.E.2d 716, | 25. See
also Gamel v. Cincinnati, 2012-Ohio-5152, 983 N.E.2d 375, J 18 (1st Dist.) (“The provision of a
retirement system for public employees is a governmental function.”) The Supreme Court later
reiterated the position specifically with regard to a state pension system. See State ex rel. Simpson
vy. State Teachers Retirement Bd., 143 Ohio St.3d 307, 2015-Ohio-149, 37 N.E.3d 1176, § 32:
Simpson also argues that the board should be estopped from capping her annual
compensation for purposes of determining her final average salary because she
relied to her detriment on the estimates given to her by STRS. However, equitable
estoppel generally does not apply against a public retirement system. Ohio Assn.
of Pub. School Emps. v. School Emps. Retirement Sys., 10th Dist. Franklin No
04AP-136, 2004-Ohio-7101, {| 51 (“If SERS can be estopped [from] reallocating
costs or modifying health care plan features because of alleged promises by its
employees/representatives, SERS would no longer have the discretion expressly
granted to it by the General Assembly * * * ”).
As estoppel is inapplicable against OPERS in this case, any arguments Relator raises
concerning her reliance on Benefits Statements or information from screen shots from her online
account are meritless
10Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Jan 28 4:33 PM-19CV007506
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OPERS did not violate a fiduciary duty to Relator. Relator misconstrues OPERS’ statutory
duty towards Relator. OPERS has a defined statutory duty to Relator, per R.C. 145.11(A). R.C.
145.11(A) “requires the fiduciary, OPERS, to administer each individual’s plan for the benefit of
the participant or its designated beneficiary”. Poliseno v. Mitchell, 10th Dist. Franklin No. 09AP-
1002, 2010-Ohio-2615, {| 22. OPERS’ duty is defined by statute and the corresponding
administrative rules and it applies to individuals and the OPERS pension plans as a whole. OPERS
has at all times acted according to statute and administrative rule in this matter. Relator is seeking
to have OPERS perform an act that is outside its statutory authority. “As a retirement system
created by statute, PERS can only pay benefits as specifically provided by statute,” Ohio Pub.
Emps. Retirement Sys. v. Coursen, 156 Ohio App. 3d 403, 2004-Ohio-1229, 806 N.E.2d 197, 7
(9th Dist.). OPERS properly applied Ohio Revised Code sections to Relator, in the same way that
the statutes are applied to all other members. OPERS did not violate a fiduciary duty to Relator.
D. Relator is not entitled to retirement benefits or damages.
Relator’s claim that she is entitled to OPERS retirement benefits is without merit, since she
has less than five years of contributing service credit. As she has not been damaged in any way,
her request for damages is moot. Furthermore, Relator states she is statutorily entitled to damages
pursuant to R.C. 2733.11, but that section is entitled Service by Publication, does not contain the
language Relator cites, and is not relevant here. R.C. 2731.11 may be what Relator meant to cite.
The Ohio Supreme Court found that a school board was not liable in a mandamus action for the
payment of prejudgment interest without a statute requiring such a payment. State ex rel. Stacy v.
Batavia Local School Dist. Bd. of Edn., 105 Ohio St.3d 476, 2005-Ohio-2974, 829 N.E.2d 298, ¥
62. The Court also found that attorney fees are not recoverable as damages in a mandamus action
under R.C. 2731.11. /d. at 78. There is no statute requiring a payment of interest by the pension
11Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Jan 28 4:33 PM-19CV007506
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fund even if an individual is found to have been denied retirement benefits. Even if this Court
determined that Relator prevailed in this suit, she would only be entitled to retirement benefits; she
would not be entitled to damages, interest, or attorney’s fees.
CONCLUSION
The Ohio Public Employees Retirement System respectfully asks this Court to deny
Relator’s request for a writ of mandamus and damages.
Respectfully submitted,
DAVE YOST (0056290)
Ohio Attorney General
/s/ Samuel A, Peppers, IIT
SAMUEL A. PEPPERS, III (0062187)
Pension Counsel
MARY THERESE J. BRIDGE
(0092232)
Associate Assistant Attorney General
30 East Broad Street, 17" Floor
Columbus, Ohio 43215
(614) 728-3546
(866) 769-6915 — Fax
Samuel Peppers@OhioA ttorney
General.Gov
MaryTherese.Bridge@Ohio
AttorneyGeneral.Gov
Counsel for Respondent Ohio Public
Employees Retirement System
12Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Jan 28 4:33 PM-19CV007506
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CERTIFICATE OF SERVICE
Thereby certify that a true copy of the foregoing has been sent this 28th day of January,
2021, via email, in addition to the notice provided by the Court’s electronic notification system, to
the following:
Thomas L. Rosenberg
trosenberg@ralaw.com
Counsel for Relator
/s/ Samuel A. Peppers, IIT
SAMUEL A. PEPPERS, III (0062187)
Pension Counsel
13
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Jan 28 4:33 PM-19CV007506 OF388 - A33 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO STATE OF OHIO, ex rel. 3 CYNTHIA L. RICHSON, 3 Case No. 19 CV 7506 Relator, : JUDGE DAN HAWKINS vs. THE OHIO PUBLIC EMPLOYEE RETIREMENT SYSTEM, Respondent. BRIEF OF RESPONDENT, OHIO PUBLIC EMPLOYEES RETIREMENT SYSTEM DAVE YOST (0056290) Thomas L. Rosenberg (0024898) Ohio Attorney General Roetzel & Andress, LPA 41 South High Street SAMUEL A. PEPPERS, III (0062187) Huntington Center, 21st Floor Pension Counsel Columbus, OH 43215 MARY THERESE J. BRIDGE (614) 463-9770 (00092232) (614) 463-9792 — Fax Associate Assistant Attorney General trosenberg@ralaw.com Outside Counsel Section Counsel for Relator 30 East Broad Street, 17th Floor Columbus, Ohio 43215 (614) 728-3546 (866) 769-6915 — Fax Samuel .Peppers@OhioA ttorney General.Gov MaryTherese.Bridge@Ohio AttorneyGeneral.Gov Counsel for Respondent Ohio Public Employees Retirement SystemFranklin County Ohio Clerk of Courts of the Common Pleas- 2021 Jan 28 4:33 PM-19CV007506 OF388 - A34 INTRODUCTION A basic principle underlies OPERS retirement benefits— an OPERS member must have five years of contributing service with an OPERS employer in order to be eligible to receive OPERS retirement benefits. Once this minimum threshold is met, an OPERS member is free to combine other eligible service credit to increase their service credit and enhance their retirement benefit. In this case, Relator does not have five years of contributing service with an OPERS employer Therefore, she is not eligible for an OPERS retirement. By her own admission, Relator failed to reach this minimum standard. Relator worked for OPERS from June 2003 until 2006. (Certified Record of Proceedings (“CR”) p. 091-094), (Relator’s brief at 1). This service with OPERS earned Relator 2.999 years of contributing service credit. (CR. 040). Relator also purchased 2.666 years of service credit based on her position with the state of Wisconsin, giving her a total of 5.665 years of Total Service Credit (as opposed to contributing service credit). (CR. 040, 076-085). The inquiry stops there. Relator had 2.999 years of contributing service and, pursuant to statute, is ineligible for an OPERS retirement. Therefore, Relator’s request for a writ of mandamus should be denied. STATEMENT OF THE FACTS AND CASE Relator worked at OPERS from June 2003 through 2006. (CR. 091-094), (Relator’s brief at 1). While employed at OPERS, Relator purchased 2.666 years of service credit based on her prior employment with the State of Wisconsin. (CR. 076-085, 040). Through her employment at OPERS and purchase of out of state service (COO8"), Relator accrued 5.665 years of Total Service Credit - comprised of 2.999 years of contributing service credit (service with OPERS) and 2.666 years of OOS credit (time purchased for service to the state of Wisconsin). (CR. 040). Relator attempted but was denied the opportunity to retire because she had not accrued five years ofFranklin County Ohio Clerk of Courts of the Common Pleas- 2021 Jan 28 4:33 PM-19CV007506 OF388 - A35 contributing service credit. (CR. 100). Relator subsequently initiated this original action in mandamus, requesting the Court issue the extraordinary writ of mandamus to compel OPERS to accept her retirement application and to provide her with retirement benefits. LAW AND ARGUMENT A. Standard of Review Relator has a heavy burden of proof. Relator must show that there is no evidence supporting OPERS’ decision that she is not entitled to apply for or receive retirement benefits. In order for a writ to issue, Relator must provide evidence that is plain, clear, and convincing showing that she had a clear legal right to apply for and receive retirement benefits, that OPERS has a clear legal duty to accept her application and provide her retirement benefits, and that she has no adequate remedy at law. See State ex rel. Pressley v. Indus. Comm. of Ohio, 11 Ohio St.2d 141, 161, 228 N.E.2d 631 (1967) and State ex rel. Solomon v. Bd. of Trustees of the Police & Firemen's Disability & Pension Fund, 72 Ohio St.3d 62, 64, 647 N.E.2d 486 (1995) “A clear legal right exists where the board abuses its discretion by entering an order which is not supported by ‘some evidence.’”” See Kinsey v. Bd. of Trustees of the Police & Firemen’s Disability & Pension Fund of Ohio, 49 Ohio St.3d 224, 225, 551 N.E.2d 989 (1990). “Abuse of discretion” means the Board acted in a manner that was unreasonable, arbitrary, or unconscionable. State ex rel. Pipoly v. State Teachers Retirement Sys., 95 Ohio St.3d 327, 2002-Ohio-2219, 767 N.E.2d 719, § 14. Ohio Courts have consistently held that a decision by a retirement system board will not be disturbed where there is “some evidence” supporting the decision. See State ex rel. Marchiano v. School Emps. Retirement Sys., 121 Ohio St.3d 139, 2009-Ohio-307, 902 N.E.2d 953, 4] 20-21. “Only if the board’s decision is not supported by any evidence will mandamus lie.” State ex rel. Woodman v. Ohio Pub. Emps. Retirement Sys., 144 Ohio St.3d 367, 2015-Ohio-3807,Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Jan 28 4:33 PM-19CV007506 OF388 - A36 43 N.E.3d 426, | 17 (emphasis in original). Relator cannot show that there was not some evidence supporting OPERS’ decision that she is not eligible to apply for and to receive retirement benefits, and thereby she has no clear legal right to relief. The state retirement systems, including OPERS, are creatures of statute and can only act in strict accordance with their enabling schemes. Cosby v. Cosby, 96 Ohio St.3d 228, 2002-Ohio- 4170, 773 N.E.2d 516, 19 (“STRS benefits are governed exclusively by statute.”); Dreger v. Pub. Emps. Retirement Sys., 34 Ohio St. 3d 17, 20-21, 516 N.E.2d 214 (1987) (“As a creature of statute, [the Police & Firemen’s Disability and Pension Fund] has no authority beyond that which is expressly conferred by statute.”); Hansford v. Pub. Emps. Retirement Sys., 170 Ohio App.3d 603, 2007-Ohio-1242, 868 NE.2d 708, { 9 (10" Dist.) (‘[U]nless its governing statutes grant the authority, OPERS is powerless to perform the act.”); Ohio Pub. Emps. Retirement Sys. v. Coursen, 156 Ohio App.3d 403, 2004-Ohio-1229, 806 N.E.2d 197, J 7 (“As a retirement system created by statute, PERS can only pay benefits as specifically provided by statute.”) Accordingly, in order for Relator to succeed on her claims, Relator must point to a clear legal duty created by statute or rule compelling OPERS to allow her to apply for and receive the disputed retirement benefits. B. The decision of OPERS is not an abuse of discretion because it is supported by more than “some evidence”. Relator challenges OPERS’ determination that Relator is not eligible to apply for OPERS retirement and to receive OPERS retirement benefits. This challenge fails because OPERS’ decision was simply an operation of law and there is more than some evidence to support that decision 1. An OPERS member must have accrued five years of contributing service credit in order to retire.Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Jan 28 4:33 PM-19CV007506 OF388 - A37 RC. section 145.32(B)(1)(a) provides that a member is eligible to retire if the member *! RC. section “{hjas five or more years of total service credit and has attained age sixty. 145.016(C)(1) states, “for the purpose of satisfying the service credit requirement and determining eligibility for benefits under [R.C.] sections 145.32 . . . “five or more years of total service credit” means five or more years of contributing service.” R.C. 145.01(T) defines “contributing service” as any service “for which contributions are made as required by sections 145.47, 145.48...”. R.C. sections 145.47 and 145.48 describe the amounts that a public employee and public employer must contribute to OPERS based on the public employee’s earnable salary Said differently, in order to be eligible for an OPERS retirement, Relator must have accrued at least five years of contributing service as opposed to five years of total service credit. Relator not only fails to deny that she did not accrue five years of contributing service, but she readily admits it. Relator admits her Benefits Statement indicated she had a total of 2.999 years of contributing service credit and 2.666 years of OSS credit that she purchased. (Relator’s brief at 2, 7). Relator does not have the requisite five years of contributing service credit to retire. A reading of Ohio Revised Code shows that OPERS did not abuse its discretion. As described above, five years of OPERS contributing service credit are required for a member to receive OPERS retirement benefits. Relator does not have five years of OPERS contributing service. Therefore, OPERS’ decision to deny Relator’s request to apply for retirement benefits is based on the law and is supported by ample evidence. 1 After SB 343, effective January 7, 2013, there are three “groups” of retirement eligibility requirements. See, R.C. 145.32(A), (B), and (C). Relator falls into “Group B” or R.C. 145.32(B), which Relator does not dispute. However, the same five years of contributing service credit eligibility requirement is present in R.C. 145.32(A)(1), (B)(1)(a), and (C)(1). As such, the arguments contained herein equally applies to each of the corresponding five-year requirements. 5Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Jan 28 4:33 PM-19CV007506 OF388 - A38 To overcome the plain reading of the Revised Code, Relator misinterprets and partially quotes several Revised Code sections in her brief. Relator’s argument, while incorrect, is straightforward. Relator claims that R.C. 145.32 only requires five years of “total service credit” to be eligible to retire, and writes in her Brief: R.C. 145.01(H)(1) states in part Total service credit...means all service credited to a member of the retirement system...including credit purchased under sections 145.293 and 145.299 of the Revised Code...and any other service credited under this chapter. (Relator’s Brief at 5, emphasis in original). Relator parlays this definition into the argument that: 1. Out of state service counts toward total service credit (to which OPERS agrees after a member has accrued five years of contributing service); and 2. There is no mention of “contributing service” in R.C. 145.32; therefore, OPERS’ argument requiring contributing service is misguided. Relator’s argument suffers one fatal flaw — while ellipses are helpful in writing quotations, they lose their effectiveness when omitting vital information. Relator’s ellipses omit the following from the definition of total service credit: “’Total service credit,’ except as provided in sections 145.016 and 145.37 of the Revised Code, means...” (emphasis added). It is the omission of “except as provided in sections 145.016...” that is problematic to her claim. As stated above, it is “145.016... of the Revised Code” which states “for the purpose of... determining eligibility for benefits under sections 145.32... of the Revised Code, ‘five or more years of total service credit’ means five or more years of contributing service...” R.C. 145.016(C)(1). Therefore, for the purposes of R.C. 145.32 and pursuant to the full definition of Total Service Credit found at R.C. 145.01(H), Relator does not have five years of contributing service OR total service credit; therefore, she is not eligible for retirement benefits And, her own admission of this fact is “some evidence” to support OPERS’ decision.Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Jan 28 4:33 PM-19CV007506 OF388 - A39 2. Relator misinterprets Ohio Revised Code. Relator next argues that R.C. 145.016 and the requirement that she have at least five years of contributing service does not apply to her. (Relator’s brief at 6 and 7). Her argument, again incorrect but straightforward is: R.C. 145.016(C)(2) exempts her from the purview of R.C. 145.016 because it states “A member, who as of the effective date of this amendment, has sixty or more months of contributions and has attained sixty years of age shall be considered to have five or more years of total service credit...” R.C. 145.016(C)(2). This argument fails for two reasons. First, “this amendment” was House Bill 572, which became effective March 22, 2019. HB. 572 removed from R.C. 145.01(H) (the definition of “Total Service Credit”) the clause: “For the exclusive purpose of... determining eligibility for benefits under sections 145.32... of the Revised Code, ‘five or more years of total service credit’ means sixty or more calendar months of contributing service in this system.” (Emphasis added). See Legislation Text As Enrolled, pgs 2-3, https://www. legislature. ohio. gov/legislation/legislation-documents?id=GA 132-HB-572 (accessed Jan. 28, 2021). At the same time, H.B. 572 added to R.C. 145.016(C)(1), which, as detailed above, states “’five or more years of total service credit’ means five or more years of contributing service...” The amendment to the statute was from sixty months of contributing service to five years of contributing service. This change is not without consequence. For the reasons below, the consequences are beyond the scope of this brief. For instance, a person could earn $125 each month for the year in 2012. Pursuant to R.C. 145.016(A) that member would have 12 months of contributions, but only have earned % year (or six months) of contributing service credit because R.C. 145.016(A)(2) prorates that service. So, prior to March 22, 2019, a member need only have some contributing service in 60 calendar months regardless of any proration. After March 22, 2019, a member must have contributed enough to actually earn five years of contributing service. 7Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Jan 28 4:33 PM-19CV007506 OF388 - AAO R.C. 145.016(C)(2) did nothing more than “grandfather” those that had reached the 60 months of contributing service AND were at least age 60 by March 22, 2019. All other members were required to meet the five-year standard. Relator did not have 60 months or five years or contributing service on March 22, 2019. And, even if she had 60 months of contributing service on March 22, 2019, which she did not, she did not turn sixty until June 26, 2019, so this exception would not apply to her. Again, it is simple, Relator needs five years of contributing service to be eligible to retire. Simply stated, Relator only has 2.999 years of contributing service credit. She does not meet the requirement to be eligible to apply for and receive a retirement benefit. C. —_Relator’s interpretation of Benefits Statements, her OPERS online account, and Revised Code is meritless. A review of the Benefit Statements show that Relator’s claim is without merit. As Relator admits in her brief, the Benefits Statement for 2007 shows that Relator accrued “Total Contributing” service of 2.999 and “Total Purchased” service (or OOS) of 2.666. (Relator’s brief at 2), (CR. 040). The Benefits Statement goes on to explain “Members are eligible to retire at age 60 with at least five years or 60 months of contributing service credit...” (emphasis added). (CR. 037). The Benefits Statement for 2007 states that OPERS members are eligible to retire if they have at least five years of contributing service credit. So, even if Relator could claim detrimental reliance to overcome the clear requirement set forth in the statute, which she cannot, she has no basis for it based on the language of the Benefits Statements. Moreover, the Benefits Statements contain language to convey that the statements do not contain the final evaluation of the member’ s eligibility to apply for and receive a retirement benefit. The Benefits Statements declare that the information is “estimated”, “projected”, and “not a guarantee”. (CR. 039, 037). For example, the Benefits Statement for 2007 statedFranklin County Ohio Clerk of Courts of the Common Pleas- 2021 Jan 28 4:33 PM-19CV007506 OF388 - A4l The following graph and chart will provide you with an estimate of what your retirement benefit would be if you chose a Single Life Benefit (Plan B). This projection is based on a number of assumptions which can change at any time, resulting in an increase or decrease in your annual benefit amount. (emphasis added) (CR. 041). Additionally, the Benefits Statement says, “Plan benefits are subject to state and federal law changes. This statement simply provides an overview of your estimated benefits and it not a guarantee of the type or amount of your benefits.” (CR. 037). The Benefits Statement clearly indicates the information on the statement is not a final guarantee of retirement eligibility or benefits. Further, the screenshot that Relator took of her OPERS online account shows the breakdown of her contributions and service credit. Relator’s Exhibit F. The image shows Relator’s Purchased Service Credit to be 2.667, her Contributing Service to be 3.000, and her Total Service Credit to be 5.667. /d. The image shows that she does not have over five years of contributing service credit. The screenshot that Relator produced does not state in any way that Relator is eligible for retirement. /d. Indeed, the screen shot of Relator’s online account supports OPERS’ determination that Relator did not meet the necessary requirement to be eligible to apply for a retirement benefit. While the Relator continues to rely on her Benefits Statements and the screen shots from her online account, these do not reflect that she met the requirements to be eligible to apply for retirement or contain the final calculation of a retirement benefit, assuming she had met the threshold requirements to be eligible to receive a retirement benefit. The Benefits Statements, as well as the information found on her online account, only provide an estimate as to when she could retire and the benefit she might receive. To the extent that Relator is attempting to raise estoppel as a claim, it is not available as a claim against OPERS. The Supreme Court has explicitly found that the statements of governmentFranklin County Ohio Clerk of Courts of the Common Pleas- 2021 Jan 28 4:33 PM-19CV007506 OF388 - A4A2 employees, even when relied upon to the detriment of a moving party, cannot bind the governmental entity. This court has held, “It is well-settled that, as a general rule, the principle of estoppel does not apply against a state or its agencies in the exercise of a governmental function.” Ohio State Bd. of Pharmacy v. Frantz (1990), 51 Ohio St.3d 143, 145-146, 555 N.E.2d 630. See, also, Sekerak v. Fairhill Mental Health Cir. (1986), 25 Ohio St.3d 38, 25 OBR 64, 495 N.E.2d 14, and Bes/ Corp. v. Pub. Util. Comm. (1976), 45 Ohio St.2d 146, 150, 74 0.0.2d 262, 341 N.E.2d 835. The Hortmans claim that because this court has inserted the words “generally” or “as a general rule” when discussing the principles of estoppel, this case may be the exception to that general rule. We disagree and hold that the doctrines of equitable estoppel and promissory estoppel are inapplicable against a political subdivision when the political subdivision is engaged in a governmental function. Sun Refining & Marketing Co. v. Brennan (1987), 31 Ohio St.3d 306, 31 OBR 584, 511 N.E.2d 112; State ex rel. Chevalier v. Brown (1985), 17 Ohio St.3d 61, 17 OBR 64, 477 N.E.2d 623. Hortman v. City of Miamisburg, 110 Ohio St.3d 194, 2006-Ohio-4251, 852 N.E.2d 716, | 25. See also Gamel v. Cincinnati, 2012-Ohio-5152, 983 N.E.2d 375, J 18 (1st Dist.) (“The provision of a retirement system for public employees is a governmental function.”) The Supreme Court later reiterated the position specifically with regard to a state pension system. See State ex rel. Simpson vy. State Teachers Retirement Bd., 143 Ohio St.3d 307, 2015-Ohio-149, 37 N.E.3d 1176, § 32: Simpson also argues that the board should be estopped from capping her annual compensation for purposes of determining her final average salary because she relied to her detriment on the estimates given to her by STRS. However, equitable estoppel generally does not apply against a public retirement system. Ohio Assn. of Pub. School Emps. v. School Emps. Retirement Sys., 10th Dist. Franklin No 04AP-136, 2004-Ohio-7101, {| 51 (“If SERS can be estopped [from] reallocating costs or modifying health care plan features because of alleged promises by its employees/representatives, SERS would no longer have the discretion expressly granted to it by the General Assembly * * * ”). As estoppel is inapplicable against OPERS in this case, any arguments Relator raises concerning her reliance on Benefits Statements or information from screen shots from her online account are meritless 10Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Jan 28 4:33 PM-19CV007506 OF388 - A43 OPERS did not violate a fiduciary duty to Relator. Relator misconstrues OPERS’ statutory duty towards Relator. OPERS has a defined statutory duty to Relator, per R.C. 145.11(A). R.C. 145.11(A) “requires the fiduciary, OPERS, to administer each individual’s plan for the benefit of the participant or its designated beneficiary”. Poliseno v. Mitchell, 10th Dist. Franklin No. 09AP- 1002, 2010-Ohio-2615, {| 22. OPERS’ duty is defined by statute and the corresponding administrative rules and it applies to individuals and the OPERS pension plans as a whole. OPERS has at all times acted according to statute and administrative rule in this matter. Relator is seeking to have OPERS perform an act that is outside its statutory authority. “As a retirement system created by statute, PERS can only pay benefits as specifically provided by statute,” Ohio Pub. Emps. Retirement Sys. v. Coursen, 156 Ohio App. 3d 403, 2004-Ohio-1229, 806 N.E.2d 197, 7 (9th Dist.). OPERS properly applied Ohio Revised Code sections to Relator, in the same way that the statutes are applied to all other members. OPERS did not violate a fiduciary duty to Relator. D. Relator is not entitled to retirement benefits or damages. Relator’s claim that she is entitled to OPERS retirement benefits is without merit, since she has less than five years of contributing service credit. As she has not been damaged in any way, her request for damages is moot. Furthermore, Relator states she is statutorily entitled to damages pursuant to R.C. 2733.11, but that section is entitled Service by Publication, does not contain the language Relator cites, and is not relevant here. R.C. 2731.11 may be what Relator meant to cite. The Ohio Supreme Court found that a school board was not liable in a mandamus action for the payment of prejudgment interest without a statute requiring such a payment. State ex rel. Stacy v. Batavia Local School Dist. Bd. of Edn., 105 Ohio St.3d 476, 2005-Ohio-2974, 829 N.E.2d 298, ¥ 62. The Court also found that attorney fees are not recoverable as damages in a mandamus action under R.C. 2731.11. /d. at 78. There is no statute requiring a payment of interest by the pension 11Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Jan 28 4:33 PM-19CV007506 OF388 - A44 fund even if an individual is found to have been denied retirement benefits. Even if this Court determined that Relator prevailed in this suit, she would only be entitled to retirement benefits; she would not be entitled to damages, interest, or attorney’s fees. CONCLUSION The Ohio Public Employees Retirement System respectfully asks this Court to deny Relator’s request for a writ of mandamus and damages. Respectfully submitted, DAVE YOST (0056290) Ohio Attorney General /s/ Samuel A, Peppers, IIT SAMUEL A. PEPPERS, III (0062187) Pension Counsel MARY THERESE J. BRIDGE (0092232) Associate Assistant Attorney General 30 East Broad Street, 17" Floor Columbus, Ohio 43215 (614) 728-3546 (866) 769-6915 — Fax Samuel Peppers@OhioA ttorney General.Gov MaryTherese.Bridge@Ohio AttorneyGeneral.Gov Counsel for Respondent Ohio Public Employees Retirement System 12Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Jan 28 4:33 PM-19CV007506 OF388 - A45 CERTIFICATE OF SERVICE Thereby certify that a true copy of the foregoing has been sent this 28th day of January, 2021, via email, in addition to the notice provided by the Court’s electronic notification system, to the following: Thomas L. Rosenberg trosenberg@ralaw.com Counsel for Relator /s/ Samuel A. Peppers, IIT SAMUEL A. PEPPERS, III (0062187) Pension Counsel 13