Motion-Secondary: 19 CV 007506

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                                OF344 pgfanklin County Ohio Clerk of Courts of the Common Pleas- 2020 Dec 09 12:24 PM-19CV007506

IN THE COURT OF COMMON PLEAS

FRANKLIN COUNTY, OHIO
STATE OF OHIO ex. rel., :
CYNTHIA L. RICHSON, CASE NO. 19 CV 7506
RELATOR, : JUDGE DAN HAWKINS
v
OHIO PUBLIC EMPLOYEES
RETIREMENT SYSTEM,
RESPONDENT

RESPONDENT’S MEMORANDUM IN OPPOSITION TO RELATOR’S
MOTION TO SUPPLEMENT CERTIFIED RECORD OF PROCEEDINGS

DAVE YOST (0056290) THOMAS L. ROSENBERG
Ohio Attorney General (0024898)

Roetzel & Andress, LPA
SAMUEL A. PEPPERS III (0062187) 41 South High Street
Pension Counsel Huntington Center, 21“ Floor
MARY THERESE J. BRIDGE (0092232) Columbus, OH 43215
Assistant Attorney General Telephone: (614) 463-9770
30 E. Broad Street, 26th Floor Fax: (614) 463-9792
Columbus, Ohio 43215 trosenberg@ralaw.com
(614) 644-0020 — Phone Counsel for Relator

Samuel.Peppers@ohioattorneygeneral.gov
MaryTherese.Bridge@ohioattorneygeneral.gov
Counsel for Respondent,

Ohio Public Employees Retirement SystemOF344 poranklin County Ohio Clerk of Courts of the Common Pleas- 2020 Dec 09 12:24 PM-19CV007506

RESPONDENT’S MEMORANDUM IN OPPOSITION TO RELATOR’S

MOTION TO SUPPLEMENT CERTIFIED RECORD OF PROCEEDINGS

Respondent Ohio Public Employees Retirement System of Ohio (“OPERS”) asks the Court
to deny the Relator Cynthia L. Richson’s Motion (filed on December 1, 2020) to supplement the
Certified Record filed by OPERS on November 20, 2020. Relator is attempting to include in the
Certified Record documents that are dated July 16, 2019 and October 28, 2020 that were not a part
of her personal history record when the Relator was notified that she was ineligible for retirement
by OPERS’s Staff. (See Paragraphs 16 and 17 of the Complaint). This is evidenced by the fact
that these documents are not part of the OPERS administrative record for this case that has been
submitted to the Court.

The issue before the Court is one of statutory interpretation and not a question of
detrimental reliance on information the Relator received in reviewing her online account or in the
annual statements she received. The documents the Relator wants to add to the Certified Record
provide no evidence of why she is not statutorily eligible to retire. This matter is purely a review
of the statutes interpreted by OPERS Staff at the time of the Relator’s inquiry regarding her ability
to retire. (See Paragraphs 15 and 16 of the Complaint). R.C. 145.32(B)(1)(a) speaks to the
eligibility of a member to retire if the member has five years or more of service credit and has
attained the age of 60 years. R.C. 145.016 (C) (1) states that for the purpose of satisfying the
service credit requirement and determining eligibility for benefits under Section 145.32, five or
more years of total service credit means 5 or more years of contributing service. R.C 145.01 (T)
defines contributing service in terms of the contributions made on behalf of the member by the

member and the member’s public employerFranklin County Ohio Clerk of Courts of the Common Pleas- 2020 Dec 09 12:24 PM-19CV007506
OF344 - B10

Therefore, it is appropriate for the Court to consider the information that was before
OPERS’ Staff at the time it was determined that the Relator was ineligible for retirement.
Mandamus cases are to be decided on the administrative record. See State ex rel. Nese v. Ohio
Public Eployees Ret. Bd., 136 Ohio St. 3d 103, 2013-Ohio-1777, at 41; State ex rel. Marchiano
vy. School Employees Ret. Sys., 121 Ohio St.3d 139, 2009-Ohio-307, at § 25

But in a mandamus proceeding challenging a retirement system's denial of
disability-retirement benefits, the applicable inquiry is whether the retirement
system abused its discretion in denying the benefits. See VanCleave, 120 Ohio St.
3d 261, 2008 Ohio 5377, at P 22, 898 N.E.2d 33. SERS could not have abused its
discretion based on evidence that was never presented to it. Cf. State ex rel. Stoll
v. Logan Cty. Bd. of Elections, 117 Ohio St.3d 76, 2008 Ohio 333, 881 N.E.2d
1214, P 40 ("a claim that the board of elections abused its discretion or clearly
disregarded applicable law could not be based on evidence that was never presented
to it").

Therefore, Respondent Ohio Public Employees Retirement System of Ohio asks this Court

to deny the Relator’s Motion to supplement the Certified Record.

Respectfully submitted,

Dave Yost (0064872)
Ohio Attorney General

/s/ Samuel A. Peppers IIT

SAMUEL A. PEPPERS III (0062187)

Pension Counsel

MARY THERESE J. BRIDGE (0092232)
Assistant Attorney General

30 East Broad Street, 17" Floor

Columbus, Ohio 43215

(614) 728-3546

Samuel .Peppers@OhioA ttorneyGeneral.gov
MaryTherese.Bridge@OhioAttorneyGeneral.gov
Counsel for Respondent Ohio Public Employees
Retirement SystemFranklin County Ohio Clerk of Courts of the Common Pleas- 2020 Dec 09 12:24 PM-19CV007506
OF344 - Bil

CERTIFICATE OF SERVICE
Thereby certify that a true and accurate copy of Respondent’s Memorandum in Opposition
to the Relator’s Motion to Supplement the Certified Record was sent via email on this 9" day of
December 2020 to:

THOMAS L. ROSENBERG (0024898)

trosenbera(dralaw com

Counsel for Relator

/s/ Samuel A. Peppers IIT
SAMUEL A. PEPPERS III (0062187)
Pension Counsel