State ex rel. Haydocy v. Ohio Pub. Emp. Retirement Sys.

[Cite as State ex rel. Haydocy v. Ohio Pub. Emp. Retirement Sys., 2025-Ohio-2056.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Cory A. Haydocy, :

Relator, :

No. 24AP-432

v. :

(REGULAR CALENDAR)

Ohio Public Employee Retirement :

System,

:

Respondent.

:

D E C I S I O N

Rendered on June 10, 2025

On brief: Cory A. Haydocy, pro se.

On brief: Dave Yost, Attorney General, Henrique A. Geigel,

and Lisa A. Reid, for Respondent.

IN MANDAMUS

ON OBJECTIONS TO THE MAGISTRATE’S DECISION

PER CURIAM

{¶ 1} On July 12, 2024, relator, Cory A. Haydocy, filed this original action

requesting a writ of mandamus ordering the respondent, the Ohio Public Employee

Retirement System (“OPERS”), to process his application for a transfer of funds. On

August 1, 2024, OPERS filed a motion to dismiss. Haydocy filed a motion for summary

judgment, a motion to expedite proceedings and for a prehearing telephone conference, a

motion to compel discovery, and a motion for a Rule 16 status conference.

{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,

this court referred the matter to a magistrate of this court. The magistrate issued the

appended decision, including findings of fact and conclusions of law. The magistrate found

that Haydocy could not establish that OPERS was under a clear legal duty to make his

No. 24AP-432 2

requested rollover payment without OPERS’s required notarized form. Accordingly, the

magistrate recommended that this court grant OPERS’s motion to dismiss. (Appended

Mag. Decision at ¶ 39.)

{¶ 3} Haydocy filed objections to the magistrate’s decision. Therefore, we must

independently review the decision to ascertain whether “the magistrate has properly

determined the factual issues and appropriately applied the law.” Civ.R. 53(D)(4)(d). For

the following reasons, we adopt the magistrate’s decision, grant OPERS’s motion to

dismiss, and deny Haydocy’s motions.

I. PROCEDURAL HISTORY AND FACTS

{¶ 4} In his petition for a writ of mandamus, Haydocy catalogued the following

series of events. Haydocy stated that he “was employed continuously by the State of Ohio

from October 1, 2012 to December 29, 2023, contributing to [OPERS] concurrently. He

held various positions, including Executive Director of the Ohio Oil and Gas Commission.”

(July 12, 2024 Petition at 2.)

{¶ 5} In a letter dated February 29, 2024, after Haydocy left his employment with

the state, Haydocy wrote to Ohio Deferred Compensation (“ODC”) and requested the

transfer of the entire value of his OPERS account from his employment with the state to an

ODC account. On May 28, 2024, Haydocy sent a similar letter to OPERS, requesting the

transfer of his funds in OPERS to an account with ODC. Haydocy stated in his petition that,

around June 27, 2024, he became aware of an OPERS internal policy that “mandated the

submission of a notarized form prior to the issuance of refunds exceeding ten thousand

dollars.” Id. at 3. On June 27, 2024, Haydocy sent a demand letter to OPERS, stating that

he met the statutory requirements for a refund under R.C. 140.45 and requesting the

processing of his request and the disbursement of funds within five business days. (Ex. D

at 1.) Haydocy, however, did not submit a notarized consent form to OPERS.

{¶ 6} On June 28, 2024, OPERS responded to Haydocy’s request, stating that it

had received his May 28, 2024 application, that it immediately sent him a consent form to

be executed and notarized, and that it had not received a notarized consent form back from

Haydocy. OPERS further stated that it was “willing to make this process as easy as possible,

including notarizing the form for you in the OPERS office.” (Ex. E.) OPERS stated that it

No. 24AP-432 3

required notarization for refunds greater than $10,000 for the protection of all OPERS

member accounts. Id.

{¶ 7} In a July 8, 2024 letter addressed to Haydocy, ODC stated that it still had not

received the roll over sum from Haydocy’s OPERS account. (Ex. A.) On July 12, 2024,

Haydocy filed his petition for writ of mandamus with this court and the matter was referred

to a magistrate.

{¶ 8} On August 1, 2024, OPERS filed a motion to dismiss in which it argued

Haydocy was not entitled to relief, as OPERS’s requirement of notarization of requests for

refunds and rollover applications is authorized under R.C. Chapter 145. OPERS further

stated in its motion to dismiss that Haydocy’s requested rollover is governed by Adm.Code

145-2-67(A) which directs that rollovers occur “at the time and in the manner prescribed

by the board.”

{¶ 9} On December 23, 2024, the magistrate found that Haydocy could not

establish that OPERS was under a clear legal duty to make the rollover payment without

the submission of a notarized form. (Mag.’s Decision at ¶ 39.) The magistrate determined

that “consistent with the broad authority granted by R.C. 145.09 and the board’s fiduciary

duty to safeguard the funds entrusted to it under R.C. 145.11, the board adopted rules that

specifically provide for withholding a payment until required information—such as the

notarized form at issue in this matter—has been provided by those seeking the payment.”

Id. at 7. Accordingly, the magistrate recommended that this court grant OPERS’s motion

to dismiss.

{¶ 10} On December 24, 2024, Haydocy filed a motion to set aside the magistrate’s

decision, along with 23 objections to said decision, and requested that this court grant his

petition for a writ of mandamus. We now consider Haydocy’s objections to the magistrate’s

decision and his various motions.

II. ANALYSIS

{¶ 11} For this court to issue a writ of mandamus, a relator must ordinarily show a

clear legal right to the relief sought, a clear legal duty on the part of the respondent to

provide such relief, and the lack of an adequate remedy in the ordinary course of the law.

State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967).

No. 24AP-432 4

{¶ 12} A motion to dismiss pursuant to Civ.R. 12(B)(6) tests the sufficiency of the

complaint. “In order for a court to dismiss a case pursuant to Civ.R. 12(B)(6) ‘it must appear

beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him

to recovery.’ ” T & M Machines, LLC v. Yost, 2020-Ohio-551, ¶ 10 (10th Dist.), quoting

O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975), syllabus. In

construing a complaint upon a Civ.R. 12(B)(6) motion, a court must presume that all factual

allegations in the complaint are true and make all reasonable inferences in the relator’s

favor. LeRoy v. Allen, Yurasek & Merklin, 2007-Ohio-3608, ¶ 14.

A. 2nd, 3rd, 4th, 6th, 9th, 11th, 12th, 19th, and 20th objections

{¶ 13} In his second, third, fourth, sixth, ninth, twelfth, nineteenth, and twentieth,

objections to the magistrate’s decision, Haydocy argues that OPERS has no legal basis or

authority to require notarization, is compelled to release Haydocy’s funds, and that OPERS

abused its discretion. We do not agree.

{¶ 14} As noted by the magistrate, OPERS has a fiduciary duty to safeguard the

funds it oversees and is granted broad authority under Chapter 145 of the Revised Code in

order to do so. “R.C. 145.11(A) imposes upon the board a general duty to safeguard and

prudently invest the funds entrusted to it.” State ex rel. Tarrier v. Pub. Emps. Retirement

Bd., 2021-Ohio-649, ¶ 21. R.C. 145.09 further directs that “[t]he board shall perform other

functions as required for the proper execution of this chapter, and may adopt rules in

accordance with section 111.15 of the Revised Code for the proper administration and

management of this chapter.”

{¶ 15} It is under this grant of authority that the OPERS board adopted rules under

Adm.Code 145, including Adm.Code 145-2-67(A), which states that a “distributee may elect,

at the time and in the manner prescribed by the board, to have any portion of an eligible

rollover distribution paid directly to an eligible retirement plan specified by the distribute

in a direct roller.” Adm.Code 145-2-70(B) also directs that recipients of a benefit “shall

provide to the retirement system . . . such other information as may be required by the

retirement system” and allows OPERS to withhold benefits or payments until OPERS

receives the required information. We do not agree with Haydocy that OPERS had no legal

basis for requiring notarization, nor do we conclude it was an abuse of discretion for OPERS

to require notarization prior to the rollover of funds.

No. 24AP-432 5

{¶ 16} In his eleventh objection, Haydocy argues that R.C. 145.40 directs that

OPERS “shall pay the member the member’s accumulated contributions” if more than two

months have passed since the end of the member’s service and they have not returned to

service. He contends that, under this language, OPERS does not have the discretion to

withhold his accumulated contributions. He directs this court to State ex rel. Davis v.

Public Emps. Retirement Bd., 119 Ohio App. 181 (10th Dist. 1963). Haydocy argues that

Davis held that an agency cannot impose requirements not explicitly found in the law and

that OPERS’s actions here mimic the unlawful conduct rejected in Davis. However, upon

closer reading of Davis we do not agree. In Davis, this court rejected an OPERS policy

requiring that an employing agency certify “that the employment has been terminated

before a payment of contributions is made to a separated employee.” Id. This court,

however, noted that “there has been no showing that such a certification is required by a

duly adopted rule or regulation, or by any of the statutes of the state of Ohio under which

the system operates.” Id. As we have noted above, that is not the case here, as the relevant

provisions of the Revised Code and administrative rules allow OPERS to require proof of

identity through notarization prior to the rolling over of funds.

B. 10th, 13th, 15th, 16th, and 17th objections

{¶ 17} Haydocy’s tenth, thirteenth, fifteenth, sixteenth, and seventeenth objections

argue that the magistrate erred in granting OPERS’s motion to dismiss, that a writ of

mandamus is the appropriate remedy, and that the magistrate erred in not reaching the

merits of Haydocy’s petition. We do not agree. As discussed above, OPERS was within its

statutory, rule-making, and discretionary authority to require the notarization form prior

to granting Haydocy’s rollover request. Therefore, as the magistrate found, Haydocy

cannot show that he has a clear legal right to his requested relief or that OPERS had a clear

legal duty to provide the requested rollover without the required notarization, and

dismissal is appropriate.

{¶ 18} We also note that Haydocy argues that the magistrate accepted OPERS’s

mischaracterizations of the facts and law without critical examination and that dismissing

his claim before the merits are adjudicated is a deprivation of due process. (Objs. at 13.)

We reject this contention, as our independent review of the record and arguments has led

No. 24AP-432 6

us to determine that “the magistrate has properly determined the factual issues and

appropriately applied the law.” Civ.R. 53(D)(4)(d).

C. 1st, 5th, 14th, and 21st objections

{¶ 19} In his first, fifth, fourteenth, and twenty-first objections to the magistrate’s

decision, Haydocy raises constitutional arguments that his property and due process

procedural rights have been violated. However, Haydocy did not raise these constitutional

arguments in his petition for a writ of mandamus and we now decline to address them.

State ex rel. Van Dyke v. Pub. Emps. Retirement Bd., 2003-Ohio-4123, ¶ 42 (Supreme

Court of Ohio finding that it need not address the merits of constitutional claims as they

were not raised in the complaint and the other party did not expressly or impliedly consent

to litigation of those claims), citing State ex rel. Miller v. Reed, 1999-Ohio-315, 87 Ohio

St.3d 159 (1999).

D. 7th, 8th, 18th, 21st, 22nd and 23rd objections

{¶ 20} In his seventh, eighth, eighteenth, twenty-first, twenty-second, and twenty-

third objections to the magistrate’s decision, Haydocy takes issue with OPERS actions,

claiming it operated with a lack of transparency, unresponsiveness, and unlawful delay. We

reject these objections as they are not supported by the record, nor do they provide Haydocy

with a clear legal right to a writ of mandamus. As we have noted above, OPERS operated

within its statutory, rule-making and discretionary authority and therefore did not

unlawfully delay the rollover of Haydocy’s funds to ODC.

III. CONCLUSION

{¶ 21} For these reasons, we overrule each of Haydocy’s objections to the

magistrate’s decision and adopt the magistrate’s decision, including the magistrate’s

findings of fact and conclusions of law, as our own. Haydocy has not established that he is

entitled to a writ of mandamus. Accordingly, we grant OPERS’s motion to dismiss, deny

the writ, dismiss the action, and deny Haydocy’s pending motions as moot.

Objections overruled.

Respondent’s motion to dismiss granted;

petition for writ of mandamus denied

and motions denied as moot.

MENTEL, BOGGS, and LELAND, JJ., concur.

No. 24AP-432 7

APPENDIX

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Cory A. Haydocy, :

Relator, :

v. : No. 24AP-432

Ohio Public Employee Retirement System, : (REGULAR CALENDAR)

Respondent. :

MAGISTRATE’S DECISION

Rendered on December 23, 2024

Cory Haydocy, pro se.

Dave Yost, Attorney General, Henrique A. Geigel, and Lisa A.

Reid, for respondent.

IN MANDAMUS

ON MOTIONS

{¶ 22} Relator Cory A. Haydocy requests the issuance of a writ of mandamus

ordering respondent Ohio Public Employees Retirement System (“OPERS”) to process his

application for transfer of funds. OPERS has filed a motion to dismiss. Haydocy has filed a

motion for summary judgment and a motion to expedite proceedings and for a prehearing

telephone conference. For the following reasons, the magistrate recommends granting

OPERS’s motion to dismiss.

I. Findings of Fact

{¶ 23} 1. Haydocy commenced this original action with the filing of his petition for

writ of mandamus on July 12, 2024.

No. 24AP-432 8

{¶ 24} 2. The petition contains several attached exhibits and Haydocy’s notarized

affidavit, in which Haydocy states that the factual representations contained in the petition

and attached exhibits are true and accurate.

{¶ 25} 3. As alleged in the petition, Haydocy was continuously employed by the State

of Ohio from October 1, 2012 through December 29, 2023, during which time he

contributed to the retirement system administered by OPERS. Haydocy has not resumed

state service since December 29, 2023, a period of more than 60 days at the time of the

filing of his petition. On February 29, 2024, Ohio Deferred Compensation (“ODC”) received

a letter from Haydocy requesting the transfer of the entire value of his OPERS account to

an account managed by ODC.

{¶ 26} Haydocy further alleges that on May 28, 2024, he sent a letter to OPERS

requesting the transfer of the market value of his OPERS account to an account managed

by ODC. On or about June 27, 2024, Haydocy alleges he became aware of an internal

OPERS policy mandating the submission of a notarized form prior to the issuance of funds

exceeding ten thousand dollars. On June 27, 2024, Haydocy sent a letter by email to OPERS

demanding the processing of his requested transfer within five business days. In the letter,

which was attached as an exhibit to the petition, Haydocy states that he “submitted a second

application online on May 28, 2024, for my OPERS fund to be released and rolled over to

my Ohio Deferred Compensation account.” (Petition at 15, Ex. D.)

{¶ 27} Haydocy alleges that on June 28, 2024, OPERS responded to Haydocy’s June

27, 2024 email. As reflected in an exhibit attached to the petition, counsel for OPERS

stated:

The OPERS Board is tasked with safeguarding the accounts of

OPERS members. The Board is also granted discretion on how

to carry out those and other duties required by Ohio Revised

Code Chapter 145. See generally, ORC 145.09, 145.11. As has

already been explained to you, part of the safeguards put in

place for the protection of all OPERS’ member accounts,

including yours, is to require notarization for refunds greater

that [sic] ten-thousand dollars.

You submitted your application on May 28, 2024.

Immediately after your submission, the OPERS system

emailed you the attached Member Consent for Refund from

Traditional Plan Application (Consent Form). There is no

record of an earlier application. As of this writing, you have

failed to complete the Consent Form, which is part of the

No. 24AP-432 9

application required by ORC 145.40. Therefore, because your

application is incomplete and pursuant to OAC 145-1-09, staff

will void your partial application if the Consent Form is not

received. As explained to you, OPERS is willing to make this

process as easy as possible, including notarizing the form for

you in the OPERS’ office.

(Emphasis in original.) (Petition at 17, Ex. E.)

{¶ 28} Also attached to the petition was a letter purportedly sent from ODC to

Haydocy on July 8, 2024. In the letter, it is stated that “[a]ccording to our records, on

[February 29, 2024], we received a roll-in form for a sum to be sent from OPERS to Ohio

Deferred Compensation.” (Petition at 11, Ex. A.) As reflected in the letter from ODC,

Haydocy alleges that as of July 8, 2024, ODC had not received the funds.

{¶ 29} 4. Haydocy claims entitlement to relief in mandamus because OPERS has

failed to comply with R.C. 145.40. Haydocy claims OPERS’s violation of the law has resulted

in substantial damages to Haydocy due to his inability to access and enjoy his property

rights and benefits. Haydocy claims that “OPERS has the authority to process refund

applications but lacks the discretion to deny Relator’s request to rollover funds to ODC.”

(Petition at 6.)

{¶ 30} 5. On August 1, 2024, OPERS filed a motion to dismiss for failure to state a

claim upon which relief can be granted pursuant to Civ.R. 12(B)(6).

{¶ 31} 6. On August 14, 2024, Haydocy filed a combined response in opposition to

OPERS’s motion to dismiss and a motion for summary judgment.

{¶ 32} 7. On December 16, 2024, Haydocy filed a motion to expedite proceedings

and for a prehearing telephone conference.

II. Discussion and Conclusions of Law

{¶ 33} Haydocy seeks a writ of mandamus ordering OPERS to process his

application for the rollover payment of funds, in addition to such other relief as deemed

just and proper.

A. Mandamus

{¶ 34} A writ of mandamus is an extraordinary remedy “ ‘issued in the name of the

state to an inferior tribunal, a corporation, board, or person, commanding the performance

of an act which the law specifically enjoins as a duty.’ ” State ex rel. Russell v. Klatt, 159

No. 24AP-432 10

Ohio St.3d 357, 2020-Ohio-875, ¶ 7, quoting R.C. 2731.01. See State ex rel. Blachere v.

Tyack, 10th Dist. No. 22AP-478, 2023-Ohio-781, ¶ 13 (stating that the purpose of

mandamus is to compel the performance of an act that the law specifically enjoins as a duty

resulting from an office, trust, or station). A writ of mandamus will issue where Haydocy

establishes by clear and convincing evidence (1) a clear legal right to the requested relief,

(2) a clear legal duty on the part of respondents to provide it, and (3) the lack of an adequate

remedy in the ordinary course of the law. State ex rel. Gil-Llamas v. Hardin, 164 Ohio St.3d

364, 2021-Ohio-1508, ¶ 19.

B. OPERS’s Motion to Dismiss

{¶ 35} OPERS asserts Haydocy’s petition should be dismissed for failure to state a

claim upon which relief can be granted.

1. Standard of Review for Motion to Dismiss Under Civ.R. 12(B)(6)

{¶ 36} A motion to dismiss for failure to state a claim pursuant to Civ.R. 12(B)(6) is

procedural and tests the sufficiency of the petition or complaint itself and any attached

documents. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545

(1992), citing Assn. for Defense of Washington Local School Dist. v. Kiger, 42 Ohio St.3d

116, 117 (1989). Attachments to the complaint are considered part of the complaint for all

purposes. Civ.R. 10(C). Generally, in ruling on a Civ.R. 12(B)(6) motion, a court “ ‘cannot

resort to evidence outside the complaint to support dismissal [except] where certain written

instruments are attached to the complaint.’ ” Brisk v. Draf Indus., 10th Dist. No. 11AP-233,

2012-Ohio-1311, ¶ 10, quoting Park v. Acierno, 160 Ohio App.3d 117, 2005-Ohio-1332, ¶ 29

(7th Dist.).

{¶ 37} A court must presume all factual allegations contained in the complaint to be

true and make all reasonable inferences in favor of the nonmoving party. Red Foot Racing

Stables v. Polhamus, 10th Dist. No. 19AP-390, 2020-Ohio-592, ¶ 11, citing State ex rel.

Turner v. Houk, 112 Ohio St.3d 561, 2007-Ohio-814, ¶ 5. “Before the court may dismiss the

complaint, it must appear beyond doubt from the complaint that the plaintiff can prove no

set of facts entitling the plaintiff to recovery.” Jones v. Dann, 10th Dist. No. 09AP-352,

2009-Ohio-5976, ¶ 9, citing O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio

St.2d 242 (1975), syllabus. Provided there is a set of facts, consistent with the complaint,

under which the complaining party could recover, a court may not grant a motion to dismiss

No. 24AP-432 11

for failure to state a claim. Prime Invests., LLC v. Altimate Care, LLC, 10th Dist. No. 20AP-

526, 2022-Ohio-1181, ¶ 23, citing York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 145

(1991). However, a court need not accept as true any unsupported and conclusory legal

propositions presented in the complaint. Bullard v. McDonald’s, 10th Dist. No. 20AP-374,

2021-Ohio-1505, ¶ 11, citing Morrow v. Reminger & Reminger Co. LPA, 183 Ohio App.3d

40, 2009-Ohio-2665, ¶ 7 (10th Dist.).

{¶ 38} “ ‘A complaint in mandamus states a claim if it alleges the existence of the

legal duty and the want of an adequate remedy at law with sufficient particularity so that

the respondent is given reasonable notice of the claim asserted.’ ” Hanson at 548, quoting

State ex rel. Alford v. Willoughby Civ. Serv. Comm., 58 Ohio St.2d 221, 224 (1979).

Creation of a legal duty enforceable in mandamus “is the distinct function of the legislative

branch of government.” State ex rel. Hodges v. Taft, 64 Ohio St.3d 1, 3 (1992). “A court in

a mandamus proceeding cannot create a duty where none exists.” State ex rel. Clough v.

Franklin Cty. Children Servs., 144 Ohio St.3d 83, 2015-Ohio-3425, ¶ 15.

2. The Petition Fails to State a Claim Upon Which Relief Can Be Granted

{¶ 39} In his petition, Haydocy alleges that he “became cognizant” of an OPERS

policy that “mandated the submission of a notarized form prior to the issuance of refunds

exceeding ten thousand dollars.” (Petition at 3.) Haydocy alleges that such “policy served

as the basis for the denial of Relator Haydocy’s request for a rollover of funds.” Id. Haydocy

claims OPERS was acting contrary to law by requiring him to submit a notarized form

before processing his rollover payment. (Petition at 4; Haydocy’s Aug. 14, 2024 Response

and Mot. for Summary Judg. at 5.) Accepting as true Haydocy’s allegation that OPERS

requires submission of a notarized form for the rollover payment that Haydocy seeks,

Haydocy cannot establish OPERS was under a clear legal duty to make the rollover payment

without requiring such submission.

{¶ 40} “The state retirement systems, including OPERS, are creatures of statute and

‘can only act in strict accordance with their enabling schemes.’ ” Poliseno v. Mitchell, 10th

Dist. No. 09AP-1002, 2010-Ohio-2615, ¶ 12, quoting Ohio Assn. of Pub. School Emp. v.

School Emp. 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). OPERS is

established under and governed by R.C. Chapter 145. R.C. 145.03(A). For the public

No. 24AP-432 12

employees of the state and those local authorities named in R.C. 145.01, membership in the

system is compulsory upon being employed and continues as long as public employment

continues. R.C. 145.03(A). See also R.C. 145.01 (defining various terms as used in the

chapter).

{¶ 41} The public employees retirement board (“the board”) is responsible for the

general administration and management of OPERS through effectuation of

R.C. Chapter 145. R.C. 145.04. The board “is a trustee of funds belonging to public

employees, which it must keep or dispose of according to the law as promulgated by the

Legislature.” State ex rel. Davis v. Pub. Emps. Retirement Bd., 119 Ohio App. 181, 184 (10th

Dist.1963). The board is under “a general duty to safeguard and prudently invest the funds

entrusted to it.” State ex rel. Tarrier v. Pub. Emps. Retirement Bd., 164 Ohio St.3d 137,

2021-Ohio-649, ¶ 21. See R.C. 145.11 (setting forth fiduciary responsibilities of the board).

The statutory scheme grants the board broad, discretionary authority to perform functions

as required for the proper execution of R.C. Chapter 145 and to adopt rules for the

administration of the retirement system. See R.C. 145.09 (mandating the board to “perform

other functions as required for the proper execution of this chapter,” and permitting the

board to “adopt rules in accordance with section 111.15 of the Revised Code for the proper

administration and management of this chapter”). See also Ohio Adm.Code 145-1-09

(reflecting the board’s granting of discretionary authority to its staff “to make

determinations required under Chapter 145. of the Revised Code, including, but not limited

to, membership, exemptions or exclusions from membership, earnable salary, benefits, and

employer reporting”); Poliseno at ¶ 20 (acknowledging “discretionary authority” granted

by R.C. 145.09 and Ohio Adm.Code 145-1-09).

{¶ 42} Pursuant to this authority, the board adopted rules, which are codified under

Ohio Adm.Code Chapter 145. Under Ohio Adm.Code 145-1-66, OPERS “may provide an

electronic medium to perform an action or notice and such medium shall constitute a form

provided or required by the system.” Another rule specifically allows the board to set the

manner by which a member may elect to have a rollover payment made to an eligible

retirement plan, such as a deferred compensation plan. Ohio Adm.Code 145-2-67(A)

(providing that “a distributee may elect, at the time and in the manner prescribed by the

board, to have any portion of an eligible rollover distribution paid directly to an eligible

No. 24AP-432 13

retirement plan specified by the distributee in a direct rollover” (Emphasis added.)). A

“direct rollover” is a “payment by the retirement system to the eligible retirement plan

specified by the distributee.” Ohio Adm.Code 145-2-67(B)(4). An eligible retirement plan

includes an “eligible deferred compensation plan” subject to certain specifications. Ohio

Adm.Code 145-2-67(B)(1)(b).

{¶ 43} Another rule affords OPERS the discretion to require that certain

information be provided by those seeking a benefit or payment. Ohio Adm.Code 145-2-70

(providing that “[r]ecipients of a benefit or payment and alternate payees shall provide to

the retirement system * * * such other information as may be required by retirement

system”). OPERS also has the discretion to withhold the benefit or payment until the

required information is provided. Id. (providing that OPERS “may withhold a benefit or

payment until the benefit recipient or alternate payee provides the information” required).

{¶ 44} Thus, consistent with the broad authority granted by R.C. 145.09 and the

board’s fiduciary duty to safeguard the funds entrusted to it under R.C. 145.11, the board

adopted rules that specifically provide for withholding a payment until required

information—such as the notarized form at issue in this matter—has been provided by those

seeking the payment.1

{¶ 45} Nevertheless, Haydocy claims that under R.C. 145.40, OPERS is legally

bound to approve his application and disburse accumulated contributions without

requiring him to submit a notarized form. OPERS’s payment of funds to a member who

ceases to be a public employee is governed by R.C. 145.40. In pertinent part,

R.C. 145.40(A)(1) provides that “if a member * * * ceases to be a public employee,” except

for certain listed exceptions, “upon application the public employees retirement board shall

pay the member the member’s accumulated contributions” if more than two months have

elapsed since the member’s service terminated and the member did not return to service

1 Though not determinative of the question presented in this matter, it is noted that notarization serves an

important function by providing evidence of a person’s identity. See R.C. 147.53 (stating that a notary taking

an acknowledgment certifies that “[t]he person acknowledging was known to the person taking the

acknowledgment, or that the person taking the acknowledgment had satisfactory evidence that the person

acknowledging was the person described in and who executed the instrument”); Est. of Ortiz v. Cicconetti, 5th

Dist. No. 2023 CA 00129, 2024-Ohio-1958, ¶ 20 (“The core function of the notarial act is to authenticate the

signature in one manner or another. In this manner, it serves to thwart fraud by verifying that the person

purporting to convey a legal interest is indeed that person.”).

No. 24AP-432 14

during that two-month period. Haydocy points to Davis, 119 Ohio App. 181, to support his

argument.

{¶ 46} In Davis, an OPERS member filed an application for refund of accumulated

contributions. Though the member had been laid off, the member’s supervisor refused to

certify that employment had been terminated. As a result, OPERS refused to approve and

process the application for refund because it determined the member had not ceased to be

a public employee, nor had his public service been terminated. In support of its refusal,

OPERS pointed to a “policy to have the director of the employing agency certify that the

employment has been terminated before a payment of contributions is made to a separated

employee.” Davis at 182. The court rejected this argument, stating that “[w]hile this could

well be the policy of the retirement system, there has been no showing that such a

certification is required by a duly adopted rule or regulation, or by any of the statutes of

the state of Ohio under which the system operates.” (Emphasis added.) Id.

{¶ 47} Unlike in Davis, the above-discussed administrative rules specifically provide

for OPERS to require the disclosure of information, such as the notarized form at issue in

this matter, prior to making a rollover payment. Haydocy also does not allege that OPERS

is requiring the director of the employing agency to certify Haydocy’s termination or end of

service from before processing the rollover request. Davis is inapposite to this matter.

{¶ 48} Moreover, the plain text of R.C. 145.40 does not prevent OPERS from

requiring the submission of a notarized form prior to making a rollover payment. Though

R.C. 145.40 provides that a payment can only be made “upon application,” it is silent as to

the form of the application. In the absence of a more specific provision, the general

authority granted to the board under R.C. 145.09, in accordance with the board’s fiduciary

duties imposed by R.C. 145.11, controls. In short, R.C. Chapter 145 does not impose upon

OPERS a clear legal duty to provide the requested relief by making a rollover payment at a

member’s request without requiring, as part of the application process, that the member

complete and submit a notarized form. See Tarrier, 2021-Ohio-649, at ¶ 21. Presuming all

factual allegations contained in the petition to be true and making all reasonable inferences

in favor of Haydocy, as the nonmoving party, it appears beyond doubt from the petition

that Haydocy can prove no set of facts entitling him to recovery in this mandamus action.

No. 24AP-432 15

C. Conclusion

{¶ 49} Because Haydocy cannot show a clear legal right to the requested relief or

that OPERS was under a clear legal duty to provide it, he cannot establish entitlement to a

writ of mandamus. Therefore, it is the decision and recommendation of the magistrate that

OPERS’s motion to dismiss should be granted. Accordingly, Haydocy’s motion for

summary judgment and motion to expedite proceedings and for a prehearing telephone

conference are moot.

/S/ MAGISTRATE

JOSEPH E. WENGER IV

NOTICE TO THE PARTIES

Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as

error on appeal the court’s adoption of any factual finding or

legal conclusion, whether or not specifically designated as a

finding of fact or conclusion of law under Civ.R.

53(D)(3)(a)(ii), unless the party timely and specifically objects

to that factual finding or legal conclusion as required by Civ.R.

53(D)(3)(b). A party may file written objections to the

magistrate’s decision within fourteen days of the filing of the

decision.