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Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Nov 21 1:20 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 EMPLOYEES
RETIREMENT SYSTEM,
Respondent.
REPLY OF RESPONDENT, THE OHIO PUBLIC EMPLOYEES RETIREMENT
SYSTEM, TO RESPONDENT’S MEMORANDUM OPPOSING MOTION TO DISMISS
Respondent Ohio Public Employees Retirement System (“OPERS”) respectfully submits
its reply to the memorandum opposing its motion to dismiss Relator’s Complaint for failure to
state a claim upon which relief can be granted, or for alternative, consistent relief. The grounds
supporting this reply are set forth in the accompanying Memorandum in Support.
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.GovFranklin County Ohio Clerk of Courts of the Common Pleas- 2019 Nov 21 1:20 PM-19CV007506
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MaryTherese.Bridge@Ohio
AttorneyGeneral.Gov
Counsel for Ohio Public Employees
Retirement SystemFranklin County Ohio Clerk of Courts of the Common Pleas- 2019 Nov 21 1:20 PM-19CV007506
0E943 - 133
MEMORANDUM IN SUPPORT
Relator Cynthia Richson “Relator” filed a petition for writ of mandamus asking the Court
to compel OPERS to accept her retirement application. Respondent OPERS filed a motion to
dismiss this case based upon simple arguments, most crucially: in order to be eligible for an
OPERS retirement, Relator must have accrued at least five years of contributing service, and she
had only accrued 2.999 years
The memorandum in opposition to the motion to dismiss does nothing to controvert the
undisputed facts and law of this case. Relator fails to allege any legal right or legal duty created
by statute compelling OPERS to allow Relator to apply for, or receive, retirement benefits. As
such, Relator can prove no set of facts entitling her to relief and her claims must be dismissed
pursuant to Rule 12(B)(6) for failure to state a claim upon which relief can be granted
Relator misconstrues the standard for dismissing a complaint pursuant to Civ.R. 12(B)(6)
The standard for dismissal under Civ.R. 12(B)(6) is well established. “A court can dismiss a
mandamus action under Civ.R. 12(B)(6) for failure to state a claim upon which relief can be
granted.” State ex rel. Daniels v. State Teachers Ret. Sys., 2017-Ohio-7847, {13 (internal citations
omitted). The dismissal of a complaint for failure to state a claim is proper when it appears, beyond
doubt, that the plaintiff can prove no set of facts entitling her to relief. Celeste v. Wiseco Piston,
151 Ohio App.3d 554, 2003-Ohio-703, § 12, 784 N.E.2d 1198 (11th Dist.). Under Civ.R 12(B)(6),
when ruling on a motion to dismiss, the court’s review is limited to the four corners of the
complaint along with any documents properly attached to or incorporated within it. See Demeraski
v. Bailey, 2015-Ohio-2162, 35 N.E.3d 913, J] 10-13 (8th Dist.) (citations omitted). OPERS’
Motion to Dismiss demonstrated a fatal deficiency in Relator’s pleadings: even when presumingFranklin County Ohio Clerk of Courts of the Common Pleas- 2019 Nov 21 1:20 PM-19CV007506
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all material allegations in Relator’s Complaint to be true, Relator can prove no set of facts entitling
her to relief.
Relator mischaracterizes OPERS’ Motion to Dismiss as a premature summary judgment
motion. OPERS’ Motion to Dismiss was a proper Motion to Dismiss and focuses only on the four
corners of Relator’s Complaint and what was attached to the Complaint. Relator attached copious
documents to her Complaint. By looking at the Complaint and the documents attached to the
Complaint, it is clear that Relator has failed to prove a set of facts entitling her to relief. As Relator
states in her memo in opposition, she did in fact offer “proof that she has 5.65 years of Total
Service Credits...”. But, and most importantly, Relator continues to allege in her Complaint that
of the 5.65 years of “Total Service Credit”, 2.999 years of it is OPERS service and the remainder
is out of state service. And this is the point in which Relator’s argument fails. She claims the
balance of OPERS’ motion is “statutory interpretation” regarding the difference between “Total
Service Credit” (the 5.64 years that we accept as true for the purpose of this motion) verses the
2.999 years of “Contributing Service” (that we accept as true for the purpose of this motion).
Contrary to her argument, Relator has provided determinative facts in her Complaint and
attachments that precludes the requirement for “statutory interpretation” but requires only OPERS’
recitation of definitions. And, these simple recitations lead to one conclusion — Relator does not
have a legal right nor does OPERS have a legal duty as a matter of law because, assuming her
Complaint is true, Relator only has 2.999 years of Contributing Service.
And, even though she loses on the very facts she provides, Relator then makes an effort to
then attack statutory definitions that comes up short. In doing so, Relator repeatedly misreads
pertinent statutes. An OPERS member must have accrued five years of contributing service credit
in order to retire. R.C. section 145.32(B)(1)(a) provides that a member is eligible to retire if theFranklin County Ohio Clerk of Courts of the Common Pleas- 2019 Nov 21 1:20 PM-19CV007506
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member “[h]as five or more years of total service credit and has attained age sixty.” R.C. section
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. section 145.01(T) defines “contributing
service” as any service “for which contributions are made as required by sections 145.47,
145.48...”. Therefore, in order to be eligible to apply for an OPERS age and service retirement
benefit, Relator must have accrued at least five years of contributing service as opposed to five
years of total service credit. In her Complaint, Relator states that she began working at OPERS in
2003 and “left her position at OPERS in 2006...” Complaint ¥ 4, 9. At its very most, her
contributing service for her public employment with OPERS would be three years. And, in fact,
that is what the Complaint and the attached Exhibits admit — Relator accrued 2.999 years of
contributing service. Complaint § 10, Exhibits A, C.
Out of State Service (“OOS”) is not included in the definition of contributing service
Instead of acknowledging the straightforward statutory requirement that an OPERS member have
at least five years of contributing service in order to retire, Relator argues that her OOS service
should be considered contributing service. OOS is purchased pursuant to R.C. 145.293. Relator’s
Complaint states the OOS was purchased in compliance with R.C. 145.29, which is the statute that
calculates the cost of OOS rather than the statute that permits the purchase. R.C. 145.29 (and its
predecessor) calculate and detail how payment must be made to OPERS. The plain language of
the statute states that the contributions are not made pursuant to R.C. 145.47 and R.C. 145.48 but
instead pursuant to R.C. 145.29 and R.C. 145.293 — in fact even the calculation itself is different.
So, while OOS is included as total service credit, OOS is not contributing service credit.Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Nov 21 1:20 PM-19CV007506
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Relator states that the OOS should be included as contributing service because Relator’s
corresponding OOS salary exceeds the requirements of R.C. 145.016(A)(1). Complaint J 18. This
is a misreading of the statute. R.C. 145.016 (A) states “credit for any contributing service shall be
allowed as follows (emphasis added). The statute continues by detailing the minimum
earnable salary a public employee must earn to have his or her contributing service to be “allowed.”
R.C. 145.016 simply creates a minimum salary threshold for fu// credit. Also, “earnable salary” is
a defined term, which Relator ignores, and is defined by R.C. 145.01(R) as “salary, wages and
other earnings paid to a contributor by reason of employment in a position covered by [OPERS].
(emphasis added). The state of Wisconsin is not an employer covered by OPERS. OOS service
does not count towards the minimal requirement that an OPERS member have five years of
contributing service.
To the extent that Relator is attempting to raise detrimental reliance as a claim, it is not
available as a claim against OPERS. It is established that “equitable estoppel generally does not
apply against a public retirement system.” State ex rel. Simpson v. State Teachers Retirement Bd.,
143 Ohio St.3d 307, 313-14, 2015-Ohio-149, 37 N.E.3d 1176, 1182, § 32 (2015), citing Ohio Assn.
of Pub. School Emps. v. School Emps. Retirement Sys., 10th Dist. Franklin No. 04AP-136, 2004-
Ohio-7101, 451. OPERS cannot be bound by the statements of its employees when it is required
to follow statutory authority. See also State ex rel. Schwaben v. School Emp. Retirement Sys., 76
Ohio St.3d 280, 285, 1996-Ohio-48, 667 N.E.2d 398, 403. Further, a review of the actual Benefit
Statements show that Relator’s claim is without merit. Page 5 of Exhibit A shows that Relator
accrued “Total Contributing” service of 2.999 and “Total Purchased” service (or OOS) of 2.666
Page 2 of Exhibit A goes on to explain “Members are eligible to retire at age 60 with at least five
years or 60 months or contributing service credit...” (emphasis added). The Benefit StatementFranklin County Ohio Clerk of Courts of the Common Pleas- 2019 Nov 21 1:20 PM-19CV007506
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included as Exhibit C includes the identical breakdown and statutory language. So, even if Relator
could claim detrimental reliance to overcome the clear command of a statute, which she cannot,
she has no basis for it based on the express language of the Benefit Statements.
As a matter of law, the Ohio Public Employees Retirement System respectfully requests
that the Complaint against it be dismissed.
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 Ohio Public Employees
Retirement SystemFranklin County Ohio Clerk of Courts of the Common Pleas- 2019 Nov 21 1:20 PM-19CV007506
0E943 - I38
CERTIFICATE OF SERVICE
Thereby certify that a true copy of the foregoing has been sent this 21st day of November,
2019, via regular U.S. mail, postage prepaid, to the following:
Thomas L. Rosenberg
Christopher W. Tackett
Roetzel & Andress, LPA
41 South High Street
Huntington Center, 21% Floor
Columbus, OH 43215
Counsel for Relator
/s/ Samuel A. Peppers, [IL
SAMUEL A. PEPPERS, III (0062187)
Pension Counsel
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Nov 21 1:20 PM-19CV007506 0E943 - I31 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 EMPLOYEES RETIREMENT SYSTEM, Respondent. REPLY OF RESPONDENT, THE OHIO PUBLIC EMPLOYEES RETIREMENT SYSTEM, TO RESPONDENT’S MEMORANDUM OPPOSING MOTION TO DISMISS Respondent Ohio Public Employees Retirement System (“OPERS”) respectfully submits its reply to the memorandum opposing its motion to dismiss Relator’s Complaint for failure to state a claim upon which relief can be granted, or for alternative, consistent relief. The grounds supporting this reply are set forth in the accompanying Memorandum in Support. 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.GovFranklin County Ohio Clerk of Courts of the Common Pleas- 2019 Nov 21 1:20 PM-19CV007506 0E943 - 132 MaryTherese.Bridge@Ohio AttorneyGeneral.Gov Counsel for Ohio Public Employees Retirement SystemFranklin County Ohio Clerk of Courts of the Common Pleas- 2019 Nov 21 1:20 PM-19CV007506 0E943 - 133 MEMORANDUM IN SUPPORT Relator Cynthia Richson “Relator” filed a petition for writ of mandamus asking the Court to compel OPERS to accept her retirement application. Respondent OPERS filed a motion to dismiss this case based upon simple arguments, most crucially: in order to be eligible for an OPERS retirement, Relator must have accrued at least five years of contributing service, and she had only accrued 2.999 years The memorandum in opposition to the motion to dismiss does nothing to controvert the undisputed facts and law of this case. Relator fails to allege any legal right or legal duty created by statute compelling OPERS to allow Relator to apply for, or receive, retirement benefits. As such, Relator can prove no set of facts entitling her to relief and her claims must be dismissed pursuant to Rule 12(B)(6) for failure to state a claim upon which relief can be granted Relator misconstrues the standard for dismissing a complaint pursuant to Civ.R. 12(B)(6) The standard for dismissal under Civ.R. 12(B)(6) is well established. “A court can dismiss a mandamus action under Civ.R. 12(B)(6) for failure to state a claim upon which relief can be granted.” State ex rel. Daniels v. State Teachers Ret. Sys., 2017-Ohio-7847, {13 (internal citations omitted). The dismissal of a complaint for failure to state a claim is proper when it appears, beyond doubt, that the plaintiff can prove no set of facts entitling her to relief. Celeste v. Wiseco Piston, 151 Ohio App.3d 554, 2003-Ohio-703, § 12, 784 N.E.2d 1198 (11th Dist.). Under Civ.R 12(B)(6), when ruling on a motion to dismiss, the court’s review is limited to the four corners of the complaint along with any documents properly attached to or incorporated within it. See Demeraski v. Bailey, 2015-Ohio-2162, 35 N.E.3d 913, J] 10-13 (8th Dist.) (citations omitted). OPERS’ Motion to Dismiss demonstrated a fatal deficiency in Relator’s pleadings: even when presumingFranklin County Ohio Clerk of Courts of the Common Pleas- 2019 Nov 21 1:20 PM-19CV007506 0E943 - I34 all material allegations in Relator’s Complaint to be true, Relator can prove no set of facts entitling her to relief. Relator mischaracterizes OPERS’ Motion to Dismiss as a premature summary judgment motion. OPERS’ Motion to Dismiss was a proper Motion to Dismiss and focuses only on the four corners of Relator’s Complaint and what was attached to the Complaint. Relator attached copious documents to her Complaint. By looking at the Complaint and the documents attached to the Complaint, it is clear that Relator has failed to prove a set of facts entitling her to relief. As Relator states in her memo in opposition, she did in fact offer “proof that she has 5.65 years of Total Service Credits...”. But, and most importantly, Relator continues to allege in her Complaint that of the 5.65 years of “Total Service Credit”, 2.999 years of it is OPERS service and the remainder is out of state service. And this is the point in which Relator’s argument fails. She claims the balance of OPERS’ motion is “statutory interpretation” regarding the difference between “Total Service Credit” (the 5.64 years that we accept as true for the purpose of this motion) verses the 2.999 years of “Contributing Service” (that we accept as true for the purpose of this motion). Contrary to her argument, Relator has provided determinative facts in her Complaint and attachments that precludes the requirement for “statutory interpretation” but requires only OPERS’ recitation of definitions. And, these simple recitations lead to one conclusion — Relator does not have a legal right nor does OPERS have a legal duty as a matter of law because, assuming her Complaint is true, Relator only has 2.999 years of Contributing Service. And, even though she loses on the very facts she provides, Relator then makes an effort to then attack statutory definitions that comes up short. In doing so, Relator repeatedly misreads pertinent statutes. An OPERS member must have accrued five years of contributing service credit in order to retire. R.C. section 145.32(B)(1)(a) provides that a member is eligible to retire if theFranklin County Ohio Clerk of Courts of the Common Pleas- 2019 Nov 21 1:20 PM-19CV007506 0E943 - I35 member “[h]as five or more years of total service credit and has attained age sixty.” R.C. section 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. section 145.01(T) defines “contributing service” as any service “for which contributions are made as required by sections 145.47, 145.48...”. Therefore, in order to be eligible to apply for an OPERS age and service retirement benefit, Relator must have accrued at least five years of contributing service as opposed to five years of total service credit. In her Complaint, Relator states that she began working at OPERS in 2003 and “left her position at OPERS in 2006...” Complaint ¥ 4, 9. At its very most, her contributing service for her public employment with OPERS would be three years. And, in fact, that is what the Complaint and the attached Exhibits admit — Relator accrued 2.999 years of contributing service. Complaint § 10, Exhibits A, C. Out of State Service (“OOS”) is not included in the definition of contributing service Instead of acknowledging the straightforward statutory requirement that an OPERS member have at least five years of contributing service in order to retire, Relator argues that her OOS service should be considered contributing service. OOS is purchased pursuant to R.C. 145.293. Relator’s Complaint states the OOS was purchased in compliance with R.C. 145.29, which is the statute that calculates the cost of OOS rather than the statute that permits the purchase. R.C. 145.29 (and its predecessor) calculate and detail how payment must be made to OPERS. The plain language of the statute states that the contributions are not made pursuant to R.C. 145.47 and R.C. 145.48 but instead pursuant to R.C. 145.29 and R.C. 145.293 — in fact even the calculation itself is different. So, while OOS is included as total service credit, OOS is not contributing service credit.Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Nov 21 1:20 PM-19CV007506 OE943 - I36 Relator states that the OOS should be included as contributing service because Relator’s corresponding OOS salary exceeds the requirements of R.C. 145.016(A)(1). Complaint J 18. This is a misreading of the statute. R.C. 145.016 (A) states “credit for any contributing service shall be allowed as follows (emphasis added). The statute continues by detailing the minimum earnable salary a public employee must earn to have his or her contributing service to be “allowed.” R.C. 145.016 simply creates a minimum salary threshold for fu// credit. Also, “earnable salary” is a defined term, which Relator ignores, and is defined by R.C. 145.01(R) as “salary, wages and other earnings paid to a contributor by reason of employment in a position covered by [OPERS]. (emphasis added). The state of Wisconsin is not an employer covered by OPERS. OOS service does not count towards the minimal requirement that an OPERS member have five years of contributing service. To the extent that Relator is attempting to raise detrimental reliance as a claim, it is not available as a claim against OPERS. It is established that “equitable estoppel generally does not apply against a public retirement system.” State ex rel. Simpson v. State Teachers Retirement Bd., 143 Ohio St.3d 307, 313-14, 2015-Ohio-149, 37 N.E.3d 1176, 1182, § 32 (2015), citing Ohio Assn. of Pub. School Emps. v. School Emps. Retirement Sys., 10th Dist. Franklin No. 04AP-136, 2004- Ohio-7101, 451. OPERS cannot be bound by the statements of its employees when it is required to follow statutory authority. See also State ex rel. Schwaben v. School Emp. Retirement Sys., 76 Ohio St.3d 280, 285, 1996-Ohio-48, 667 N.E.2d 398, 403. Further, a review of the actual Benefit Statements show that Relator’s claim is without merit. Page 5 of Exhibit A shows that Relator accrued “Total Contributing” service of 2.999 and “Total Purchased” service (or OOS) of 2.666 Page 2 of Exhibit A goes on to explain “Members are eligible to retire at age 60 with at least five years or 60 months or contributing service credit...” (emphasis added). The Benefit StatementFranklin County Ohio Clerk of Courts of the Common Pleas- 2019 Nov 21 1:20 PM-19CV007506 0E943 - I37 included as Exhibit C includes the identical breakdown and statutory language. So, even if Relator could claim detrimental reliance to overcome the clear command of a statute, which she cannot, she has no basis for it based on the express language of the Benefit Statements. As a matter of law, the Ohio Public Employees Retirement System respectfully requests that the Complaint against it be dismissed. 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 Ohio Public Employees Retirement SystemFranklin County Ohio Clerk of Courts of the Common Pleas- 2019 Nov 21 1:20 PM-19CV007506 0E943 - I38 CERTIFICATE OF SERVICE Thereby certify that a true copy of the foregoing has been sent this 21st day of November, 2019, via regular U.S. mail, postage prepaid, to the following: Thomas L. Rosenberg Christopher W. Tackett Roetzel & Andress, LPA 41 South High Street Huntington Center, 21% Floor Columbus, OH 43215 Counsel for Relator /s/ Samuel A. Peppers, [IL SAMUEL A. PEPPERS, III (0062187) Pension Counsel