Opinion

State ex rel. Fitzgerald v. Ohio Police & Fire Pension Fund Bd. of Trustees

  • 2015 Ohio 5079
Court
Ohio Court of Appeals
Filed
Dec 8, 2015
Status
Published
On the bench
Luper Schuster
Cited by
3 cases
Authority
More cited than 51.3%

The opinion

[Cite as State ex rel. Fitzgerald v. Ohio Police & Fire Pension Fund Bd. of Trustees, 2015-Ohio-5079.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Ramona K. Fitzgerald, :

Relator, :

v. : No. 14AP-968

Board of Trustees of Ohio Police & : (REGULAR CALENDAR)

Fire Pension Fund and Ohio Police &

Fire Pension Fund, :

Respondents. :

D E C I S I O N

Rendered on December 8, 2015

Law Offices of Gary A. Reeve, LLC, and Gary A. Reeve, for

relator.

Michael DeWine, Attorney General, John J. Danish, and

Mary Therese J. Bridge, for respondents.

IN MANDAMUS

ON OBJECTIONS TO THE MAGISTRATE'S DECISION

LUPER SCHUSTER, J.

{¶ 1} Relator Ramona K. Fitzgerald initiated this original action requesting a writ

of mandamus ordering the Ohio Police and Fire Pension Fund ("OP&F") and its board of

trustees ("board") (collectively "respondents") to accept the election to enroll form

Fitzgerald submitted on February 10, 2011, regarding OP&F's deferred retirement option

plan ("DROP").

{¶ 2} This court referred the matter to a magistrate pursuant to Civ.R. 53(C) and

Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate rendered a decision

that includes findings of fact and conclusions of law. The magistrate's decision, which is

No. 14AP-968 2

appended hereto, recommends this court deny Fitzgerald's request for a writ of

mandamus. Fitzgerald filed objections to the magistrate's decision. The matter is now

before the court for our independent review. For the reasons that follow, we sustain

Fitzgerald's objections to the extent she argues the magistrate erred in finding

respondents did not abuse their discretion by rejecting her February 10, 2011 election

form, and we therefore grant the requested writ of mandamus.

I. Facts and Procedural History

{¶ 3} On February 10, 2011, Fitzgerald attempted to enroll in OP&F's DROP

program by completing and submitting the required OP&F election to enroll in DROP

form ("election form"). The election form Fitzgerald submitted had been changed in

multiple ways through the use of a white correction fluid ("whiteout"). The election form

had been changed to correct the designation of Fitzgerald's marital status at the time of

the election from "single" to "divorced," to change Fitzgerald's DROP payment plan

selection from indicating she wanted to select a payment plan to indicate she did not want

to select a payment plan, and to omit beneficiary information. The record contains a

letter dated February 11, 2011, addressed to "Ramona Boyd," indicating OP&F had

received Fitzgerald's election form, but that it was not accepted because the form was

"incomplete." Fitzgerald denies receiving the February 11, 2011 letter, which was

addressed to her former name. On April 15, 2013, general counsel for OP&F sent a letter

to Fitzgerald further explaining why she was not enrolled in DROP. General counsel

indicated that Fitzgerald's February 10, 2011 election form was not "fully and properly

completed" because it had been "altered." The next week, on April 24, 2013, Fitzgerald

completed and submitted a new election form to OP&F. Like the previously submitted

election form, on the April 24, 2013 election form, Fitzgerald's marital status was changed

from "single" to "divorced" using whiteout. This was the only change made to the

April 24, 2013 election form. OP&F accepted the new election form, and, by letter dated

July 18, 2013, informed Fitzgerald that she was enrolled in the DROP program effective

April 28, 2013.

{¶ 4} In November 2014, Fitzgerald filed her complaint in mandamus. The

magistrate rendered his decision in June 2015, and Fitzgerald timely filed objections to

the decision.

No. 14AP-968 3

II. Objections to the Magistrate's Decision

{¶ 5} Fitzgerald sets forth the following objections to the magistrate's decision:

[1.] It failed to address whether why Fitzgerald's clearly

expressed wishes regarding parameters for joining DROP

program represented by the February 10, 2011 election form,

need not be carried out;

[2.] It failed to set forth and define any fiduciary duty owed by

the Respondents (collectively "Fund") to Fitzgerald in the

treatment of the February 10, 2011 DROP program election

form, and how that fiduciary duty must be weighed against

the Fund's discretion; and,

[3.] It set forth as a major reason for supporting the denial of

benefits a reason not set forth by the Fund in the April 15,

2013 letter that referred to as the "final written decision"

being appealed in this action.

III. Discussion

{¶ 6} Because they are interrelated, we will address together Fitzgerald's three

objections. Fitzgerald's first objection asserts the magistrate did not properly consider the

fact that her intentions regarding the DROP program were clearly set forth in the

February 10, 2011 election form. Fitzgerald's second objection asserts the magistrate

erred in not finding that respondents' fiduciary duty to her required respondents to accept

the February 10, 2011 election form and enroll her in the DROP program based on that

submission. Fitzgerald's third objection alleges the magistrate erroneously fabricated a

reason for the rejection of her February 10, 2011 election form that was not set forth by

respondents. By all three of her objections, Fitzgerald generally challenges the

magistrate's decision that this court deny her request for a writ of mandamus ordering

respondents to accept her February 10, 2011 election form regarding the DROP program.

A. Applicable Law

{¶ 7} In order for a court to issue a writ of mandamus, a relator must show a clear

legal right to the requested relief, that the respondent has a clear legal duty to provide

such relief, and that there is a lack of an adequate remedy in the ordinary course of law.

See, e.g., State ex rel. Gen. Motors Corp. v. Indus. Comm., 117 Ohio St.3d 480, 2008-

Ohio-1593. "As long as there is sufficient evidence to support [a] retirement-system

No. 14AP-968 4

board's decisions, we will not disturb them." State ex rel. Grein v. Ohio State Hwy. Patrol

Retirement Sys., 116 Ohio St.3d 344, 2007-Ohio-6667, ¶ 9. But a clear legal right exists

when a retirement board abuses its discretion by entering an order which is not supported

by "some evidence." Kinsey v. Bd. of Trustees of Police & Firemen's Disability & Pension

Fund of Ohio, 49 Ohio St.3d 224, 225 (1990). "An abuse of discretion reflects an

unreasonable, arbitrary, or unconscionable attitude." State ex rel. Sawyer v. Cendroski,

118 Ohio St.3d 50, 2008-Ohio-1771, ¶ 11.

{¶ 8} The Ohio state retirement systems, including OP&F, are creatures of statute

and "can only act in strict accordance with their enabling schemes." Ohio Assn. of Pub.

School Emps. v. School Emps. Retirement Sys., 10th Dist. No. 04AP-136, 2004-Ohio-

7101, ¶ 23, citing State ex rel. Horvath v. State Teachers Retirement Bd., 83 Ohio St.3d

67, 74 (1998). However, when considering the extraordinary writ of mandamus, a court

must defer to the retirement system's interpretation of its own rules and statutes so long

as the interpretation is reasonable. State ex rel. Domhoff v. Ohio Pub. Emps. Retirement

Sys. Bd., 10th Dist. No. 12AP-245, 2013-Ohio-2513, ¶ 12, citing State ex rel. Gill v. School

Emps. Retirement Sys. of Ohio, 121 Ohio St.3d 567, 2009-Ohio-1358, ¶ 28-29. See

McAuliffe v. Bd. of Pub. Emp. Retirement Sys. of Ohio, 93 Ohio App.3d 353, 360 (10th

Dist.1994) ("[W]e should pay due deference to a reasonable construction by an

administrative agency interpreting its own rule.").

{¶ 9} R.C. 742.43 requires the board to establish and administer a DROP and to

adopt rules to implement the statutes governing DROP. To make an election to

participate in DROP, an eligible member of OP&F "shall complete and submit" to OP&F

"a form prescribed by [OP&F]." R.C. 742.44. Pursuant to the mandate of R.C. 742.43, the

board has adopted rules to implement DROP. See Ohio Adm.Code Chapter 742-4. As

pertinent here, pursuant to Ohio Adm.Code 742-4-01(B), a "DROP participant" is "an

eligible member who files the election (as hereinafter defined) with OP&F and the election

has been fully completed and properly completed by the member." This rule defines

"election" as "the election form that OP&F requires in order for a member to participate in

DROP, as such form may be amended or modified from time to time by OP&F. For those

elections that have been filed with OP&F, it shall also mean the fully and properly

completed required election that is signed by the member." Ohio Adm.Code 742-4-01(F).

No. 14AP-968 5

B. The Election Form

{¶ 10} Pursuant to R.C. 742.44, OP&F has made available a four-page form

captioned "ELECTION TO ENROLL IN DROP (Deferred Retirement Option Plan)" (the

election form). The election form contains the following instructions directly below the

form's title:

Please print in ink or type all entries except signatures. To

apply for DROP, you must submit this completed and

notarized form to OP&F. OP&F will acknowledge receipt of

your application within 10 business days of receipt. Please

note that filing this form does not guarantee DROP

participation. All applications will be subject to a

determination of eligibility by OP&F. Since OP&F will audit

your service credit, you will be notified as to whether or not

you meet the DROP eligibility requirements. OP&F will not

accept this form if it is incomplete or the signatures in

Sections D – G have been faxed, photocopied or scanned. This

entire form (pages 1-4) must be on file with OP&F and contain

original signatures.

Section A of the form requires the applying member to provide his or her identifying

information, including his or her name, address, date of birth, and marital status. Section

B of the form is captioned "Payment plan selection" and instructs the member to indicate

whether he or she wishes to select a DROP payment plan by checking the appropriate box.

"I do not want to select a payment plan" is preprinted on the form next to the first box in

Section B. "I do want to select a payment plan" is preprinted on the form next to the

second box in Section B. Section C of the form concerns DROP payment plan

beneficiaries, which is pertinent only if the member chooses to select a payment plan.

Section D is captioned "Member signature and acknowledgement," and that section

generally outlines the terms of a member's election to participate in DROP and provides

space for the electing member's signature. Section E of the form is captioned "Notary

Public requirement for member signature and acknowledgement" and provides space for

a notary to sign upon the member acknowledging the form. Sections F and G of the form

concern spousal consent and are not relevant here.

No. 14AP-968 6

C. Analysis

{¶ 11} Fitzgerald argues it was unreasonable for respondents to reject her

February 10, 2011 election form because the form clearly expresses her wishes regarding

the DROP program. In support of this argument, Fitzgerald cites Poliseno v. Mitchell,

10th Dist. No. 09AP-1001, 2010-Ohio-2615. Respondents argue they reasonably rejected

the form at issue because it had been altered in multiple areas. According to respondents,

the February 10, 2011 election form was not "fully and properly completed" as required by

the applicable administrative rules. Based on the arguments and facts presented, the

issue is whether it was an abuse of discretion for respondents to conclude that Fitzgerald's

use of whiteout to make changes to the election form, prior to its submission to OP&F,

rendered the form not "fully and properly completed" as required by the applicable

administrative rules. We find it was unreasonable for respondents to reject Fitzgerald's

February 10, 2011 election form on the basis the form had been altered prior to its

submission to OP&F.

{¶ 12} Contrary to Fitzgerald's suggestion, Poliseno is not directly on point;

however, that case does provide some guidance. In Poliseno, the issue was whether the

Ohio Public Employees Retirement System ("OPERS") had exceeded its discretion by

accepting a beneficiary designation form when the intended beneficiary's first and last

name were provided in the incorrect order and a scribe had attempted to correct the

mistake to comply with the form instructions. Id. at ¶ 17. OPERS initially rejected the

form, and then later accepted it upon determining that the alteration "was minor and the

member[']s intention was clear." Id. at ¶ 4-5, 19. This court noted that "[u]nder such

circumstances, OPERS' strict application of a zero tolerance policy itself arguably would

be arbitrary and capricious." Id. at ¶ 19. This court concluded that OPERS' acceptance of

the beneficiary designation form was within its discretionary authority to find the form

"duly executed" pursuant to the applicable statutory scheme. Id. at ¶ 13, 20.

{¶ 13} In contrast to Poliseno, this appeal concerns the rejection of a retirement

fund form that had been altered prior to its submission. However, like Poliseno, this case

implicates the concept of a "zero tolerance policy" requiring the rejection of a form even if

the member's intent is clear. There is no doubt that an election form with markings or

attempted corrections that do not clearly indicate the required information or selections

No. 14AP-968 7

would not be fully and properly completed. But that is not what occurred here.

Fitzgerald's choice not to select a payment plan as part of her enrollment in DROP is clear

based on the use of the whiteout as to the box beside "I do want to select a payment plan"

and the mark over the box beside "I do not want to select a payment plan." The form

indicates that if the member selects the option not to select a payment plan, the member

is directed to "NOT complete Sections C, F and G of this form." If the member wishes to

select a payment plan, Section C includes spaces for the designation of DROP payment

plan beneficiaries. Consistent with the change as to Fitzgerald's choice not to select a

payment plan, whiteout was used to remove the designation of a DROP payment plan

beneficiary, including the beneficiary's social security number and date of birth. That is,

by changing her selection to indicate she did not want to select a payment plan,

Fitzgerald's removal by whiteout of the beneficiary name and associated information was

consistent with the instructions on the form to not complete Section C if the member did

not wish to select a payment plan.

{¶ 14} We are unpersuaded by both the rationale given by respondents for the

rejection of Fitzgerald's February 10, 2011 election form, and the additional reasoning

introduced by the magistrate to support the rejection. The initial letter of rejection

apparently sent to Fitzgerald advised her to be "careful to avoid crossing out or whiting

out your selections." (Feb. 11, 2011 OP&F letter.) General counsel for the fund indicated

the form was rejected as not fully and properly completed because it was altered. The

general counsel's letter to Fitzgerald reflects a zero tolerance policy—any alterations

render a form not "fully and properly completed," even if the intent of the member is clear

and unmistakable. The magistrate reasoned that respondents reasonably viewed the

alterations in Sections B and C to be significant as they concern substantive and impactful

changes. In contrast, only changing the marital status marking in the member

identification section (Section A) was arguably not significant because it did not involve

Fitzgerald's selection of impactful choices as to her enrollment in DROP. The magistrate

posits that, although not stated by the general counsel, Fitzgerald's use of whiteout

"creates a legitimate concern that relator may not have been adequately informed when

she prepared the form." (Magistrate's Decision, ¶ 73.) The magistrate essentially found

No. 14AP-968 8

that respondents reasonably imposed a zero tolerance policy as to any alterations relating

to substantively significant selections on the election form.

{¶ 15} Contrary to the reasoning of respondents and the magistrate, nothing in the

statutory scheme, the applicable rules, or the election form itself, suggests that for an

OP&F election form to be fully and properly completed it must have no changes through

the use of whiteout upon being submitted. The election form contains detailed

instructions for its proper completion, including emphasizing that only original signatures

are accepted. It also requires the member's signature to be notarized. Noticeably absent

from the form is any directive or even suggestion that a member cannot make changes to

the form prior to submitting it to OP&F. Nothing in the controlling statutes and rules

precludes a member from changing her mind prior to submitting an election form and

taking steps to change her markings on the form to ensure her selections are clear upon

submission.

{¶ 16} In the final analysis, we conclude respondents abused their discretion in not

accepting Fitzgerald's February 10, 2011 election form. It was unreasonable for

respondents to reject the form on the basis there had been changes to the form prior to its

submission because Fitzgerald's intent regarding all pertinent information was clearly

presented on the submitted form and because the enabling statutes and applicable rules

do not authorize such a rejection.

IV. Disposition

{¶ 17} Based on the foregoing, we sustain Fitzgerald's objections to the

magistrate's decision to the extent she argues the magistrate erred in finding respondents

did not abuse their discretion when they rejected Fitzgerald's February 10, 2011 election

form. We adopt the factual findings of the magistrate, but we reject the magistrate's

conclusions of law. Because respondents' rejection of Fitzgerald's form constituted an

abuse of discretion, Fitzgerald's request for a writ of mandamus is granted. OP&F and the

board are directed to accept Fitzgerald's election form as having been filed on

February 10, 2011.

Objections sustained; writ granted.

TYACK and HORTON, JJ., concur.

No. 14AP-968 9

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Ramona K. Fitzgerald, :

Relator, :

v. : No. 14AP-968

Board of Trustees of Ohio Police & : (REGULAR CALENDAR)

Fire Pension Fund and Ohio Police &

Fire Pension Fund, :

Respondents. :

MAGISTRATE'S DECISION

Rendered on June 24, 2015

Law Offices of Gary A. Reeve, LLC, and Gary A. Reeve, for

relator.

Michael DeWine, Attorney General, and John J. Danish, for

respondents.

IN MANDAMUS

{¶ 18} In this original action, relator, Ramona K. Fitzgerald, requests a writ of

mandamus ordering respondent, Ohio police and fire pension fund ("OP&F" or "fund"),

and the OP&F board of trustees ("board"), to accept the election form Fitzgerald

submitted on February 10, 2011 regarding the deferred retirement option plan.

Findings of Fact:

{¶ 19} 1. Pursuant to R.C. 742.43, the board shall establish and administer a

deferred retirement option plan ("DROP").

No. 14AP-968 10

{¶ 20} 2. Pursuant to R.C. 742.44, to make an election to participate in DROP, an

eligible member of the fund "shall complete and submit" a form prescribed by the fund.

{¶ 21} 3. Pursuant to R.C. 742.44, OP&F provides a four-page form captioned

"ELECTION TO ENROLL IN DROP (DEFERRED RETIREMENT OPTION PLAN)."

{¶ 22} The form is divided into six sections. Pertinent here are the four sections

designated sections A through E.

{¶ 23} Above Section A, the following preprinted instructions provide:

Please print in ink or type all entries except signatures. To

apply for DROP, you must submit this completed and

notarized form to OP&F. OP&F will acknowledge receipt of

your application within 10 business days of receipt. Please

note that filing this form does not guarantee DROP

participation. All applications will be subject to a

determination of eligibility by OP&F. Since OP&F will audit

your service credit, you will be notified as to whether or not

you meet the DROP eligibility requirements. OP&F will not

accept this form if it is incomplete or the signatures in

Sections D - G have been faxed, photocopied or scanned.

This entire form (pages 1-4) must be on file with OP&F and

contain original signatures.

{¶ 24} Section A is captioned "Member Information." In Section A, the applicant is

asked to provide her name and address. On the form at issue, "Ramona K. Fitzgerald" is

written by hand as the applicant's name. The applicant's address is written "7723

Sherridon Drive, Blacklick, Ohio, 43004."

{¶ 25} Also, the applicant is asked to mark one of four boxes that describes

"[m]arital status at time of application." There is a box aside "Single," "Married,"

"Divorced," and "Widowed."

{¶ 26} On the form relator submitted to OP&F on February 10, 2011, it appears

that the "Single" box was whited out using white correction fluid and the box was redrawn

without a mark to show that the "Single" box is intended to be unmarked.

{¶ 27} The box aside "Divorced" is marked by an X placed over the box.

{¶ 28} 4. Section B of the form is captioned "Payment plan selection." In Section

B, the applicant is instructed to "[c]hoose whether or not you want to select a payment

plan by checking the box next to your selection below."

No. 14AP-968 11

{¶ 29} Below the instructions for Section B, two boxes are provided. "I do not want

to select a payment plan" is preprinted on the form aside the first box.

{¶ 30} "I do want to select a payment plan" is preprinted on the form aside the

second box.

{¶ 31} On the form at issue in Section B, it appears that the second box was whited

out using white correction fluid and the box was redrawn without a mark to show that the

second box is intended to be unmarked.

{¶ 32} The first box is marked with an X placed over the box.

{¶ 33} 5. Section C of the form at issue is captioned "DROP payment plan

beneficiaries." The form permits the applicant to designate up to four beneficiaries

designated as "Beneficiary #1" through "Beneficiary #4."

{¶ 34} Under "Beneficiary #1," the form permits the applicant to enter the

beneficiary's name, address, social security number, and date of birth. On the form at

issue, it appears that the spaces provided for the beneficiary's name, social security

number, and date of birth were whited out using white correction fluid to indicate that no

beneficiary is designated.

{¶ 35} All the spaces provided for a "Beneficiary #2" through "Beneficiary #4" are

left blank in the form at issue.

{¶ 36} 6. Section D of the form is captioned "Member signature and

acknowledgement." Section D provides spaces for the "Member's signature" and "Date of

signature." On the form at issue, the signature of Ramona K. Fitzgerald appears. Also,

the signature is dated "02/10/11."

{¶ 37} 7. Section E of the form, is captioned "Notary Public requirement for

member signature and acknowledgement." The form at issue was notarized on February

10, 2011.

{¶ 38} 8. On February 10, 2011, relator filed with OP&F the form as described

above.

{¶ 39} 9. The record contains a letter dated February 11, 2011 from OP&F

Transactions Specialist, Yvette Kellam. The letter is addressed as follows:

Ramona Boyd

7723 Sherridon Dr.

No. 14AP-968 12

Blacklick, OH 43004-8178

10. The letter states:

The Ohio Police & Fire Pension Fund ("OP&F") is in receipt

of your Election to Enroll in DROP (Deferred Retirement

Option Plan). In reviewing your form, we noticed that your

selection has been altered. OP&F cannot accept your

application because it is incomplete. To avoid any processing

delays, please complete the enclosed Election to Enroll in

DROP, being careful to avoid crossing out or whiting out

your selections, and return the notarized form to our office

as soon as possible.

{¶ 40} 10. According to relator, she never received the February 11, 2011 letter.

{¶ 41} 11. Earlier, on January 29, 2001, relator completed a written request from

OP&F's customer service department addressed to "Ramona Boyd." The request asked

relator to provide her name and current address, and to sign and date the document.

{¶ 42} On the OP&F request, relator gave her name as Ramona K. Fitzgerald and

her current address as: "7723 Sherridon Trail Drive, Blacklick, Ohio, 43004."

{¶ 43} The document was signed by relator as Ramona K. Fitzgerald and dated

January 29, 2001.

{¶ 44} 12. Earlier on January 8, 2001, relator completed a form provided by the

City of Columbus, Division of Fire captioned "Personnel Record Change." On the form,

"Ramona K. Fitzgerald" indicates by her mark that, effective November 22, 2000, she has

had a change in her marital status to "divorced." She also indicated a change in her

address to: "7723 Sherridon Trails Dr., Blacklick, Ohio, 43004."

{¶ 45} 13. The record contains a letter to OP&F dated September 18, 2012 from

Ramona K. Fitzgerald. In the letter, relator states that she is enclosing a copy of her

decree of divorce and that she is requesting OP&F to change all records to reflect her

current name. The enclosed decree of divorce was issued by the Franklin County Court of

Common Pleas, Division of Domestic Relations. The decree acknowledges a November

22, 2000 court hearing and provides that relator "shall be restored to her former name of

Ramona K. Fitzgerald."

{¶ 46} 14. Apparently, on March 18, 2013, relator visited OP&F offices to inquire

as to why she was not enrolled in the DROP program.

No. 14AP-968 13

{¶ 47} 15. By letter dated April 15, 2013, via certified mail, return receipt

requested, relator was informed by OP&F general counsel Mary Beth Foley:

I am writing in response to your inquiry as to why you are

not enrolled in the Deferred Retirement Option Plan

("DROP").

Ohio Revised Code Section 742.44 provides that, to make a

DROP election, an eligible member must complete and

submit to OP&F "a form prescribed by the fund." Rule 742-4-

01(E) [sic], of the Ohio Administrative Code provides that a

DROP "election" means the "fully and properly completed

required election that is signed by the member." Emphasis

added.

According to our records, you submitted an Election to

Enroll in DROP form to OP&F on February 10, 2011. A copy

of this form is enclosed for your reference. OP&F staff sent a

letter to you on February 11, 2011 to inform you that your

DROP election form had been altered and that,

consequently, you would need to complete and submit a new

DROP election form to OP&F. I have enclosed a copy of

OP&F's letter for your reference. However, OP&F did not,

and has not, received a fully and properly completed Election

to Enroll in DROP form from you. Therefore, you have not

been enrolled in DROP and are not enrolled in DROP.

When you visited our office and raised this issue on

March 18, 2013, an OP&F Customer Service representative

provided you with copies of the enclosed documentation. At

that time, you stated that you did not receive the letter that

OP&F sent to you on February 11, 2011. That letter was

mailed to you at the following address: 7723 Sherridon

Drive, Blacklick, Ohio 43004. Our records show that this is

currently your mailing address and has been your mailing

address since January 14, 2011, when you had contacted

OP&F to update your address.

If you wish to participate in DROP, you will need to complete

the enclosed Election to Enroll in DROP form and submit it

to OP&F. If the form is fully and properly completed, your

eligibility to participate in DROP will then be determined

and you will be notified as to whether or not you meet the

plan's eligibility requirements. If you meet these eligibility

requirements, the effective date of your DROP election will

be the first day of the employer's first payroll period

immediately following OP&F's receipt of the Election to

No. 14AP-968 14

Enroll in DROP form, as required by Ohio Revised Code

Section 742.44.

(Emphasis sic.)

{¶ 48} 16. On April 24, 2013, relator filed with OP&F another election form

executed by relator on April 23, 2013 and notarized the same day.

{¶ 49} Under Section A of the form, as was the case with the form filed on February

10, 2011, the "Single" box was whited out using white correction fluid and the box was

redrawn without a mark to show that the "Single" box is intended to be unmarked.

{¶ 50} The box aside "Divorced" is marked by an X placed over the box just as was

the case of the February 10, 2011 form.

{¶ 51} However, the April 24, 2013 form differs substantially from the February 10,

2011 form because there was no use of white correction fluid or other types of alteration at

Sections B or C.

{¶ 52} 17. By letter dated April 29, 2013 from OP&F Transaction Specialist, Yvette

Kellam, relator was informed:

OP&F is pleased to verify that your DROP Election Form was

received on April 24, 2013.

OP&F will conduct a thorough review of your file to

determine your eligibility for the Deferred Retirement

Option Plan (DROP). Upon completion of this review, OP&F

will send written correspondence to you with your DROP

effective date and base pension amount to be credited to

DROP. Please note that you must meet the qualifications

outlined in the Guide to Deferred Retirement Option Plan

(DROP) in order to receive any benefits that you may

accumulate during your DROP participation.

Please note that this notice does not guarantee DROP

eligibility or participation. All elections will be subject to a

determination of eligibility by OP&F based on the terms of

the Ohio Revised Code and OP&F's administrative rules. You

may cancel your DROP election within 30 days of OP&F's

receipt of your Election Form, which is the date referenced in

the first sentence of this letter.

No. 14AP-968 15

{¶ 53} 18. By letter dated July 18, 2013, OP&F informed relator that she is enrolled

in the DROP program effective April 28, 2013.

{¶ 54} 19. On November 21, 2014, relator, Ramona K. Fitzgerald, filed this

mandamus action.

Conclusions of Law:

{¶ 55} The issue is whether respondents abused their discretion in refusing to

accept the DROP election form relator submitted on February 10, 2011.

{¶ 56} Finding no abuse of discretion, it is the magistrate's decision that this court

deny relator's request for a writ of mandamus, as more fully explained below.

{¶ 57} R.C. 742.43 provides that: "[t]he board of trustees of the Ohio police and

fire pension fund shall establish and administer a deferred retirement option plan."

{¶ 58} R.C. 742.43 further provides that: "[t]he board shall adopt rules to

implement this section and sections 742.44 to 742.446 of the Revised Code."

{¶ 59} On February 10, 2011, the date relator submitted the DROP election form at

issue, R.C. 742.44 provided:

[A]t any time prior to filing an application for retirement

under division (C)(1) of section 742.37 of the Revised Code, a

member who is eligible to retire under that division may

elect to participate in the deferred retirement option plan

established under section 742.43 of the Revised Code.

To make an election, an eligible member shall complete and

submit to the Ohio police and fire pension fund a form

prescribed by the fund.

***

The effective date of an election made under this section is

the first day of the employer's first payroll period

immediately following the board's receipt of the notice of

election.

{¶ 60} On February 10, 2011, the date relator submitted the DROP election form at

issue, and currently, Ohio Adm.Code 742-4-01, captioned "General DROP Definitions,"

provides:

No. 14AP-968 16

(B) A "DROP Participant" shall mean an eligible member

who files the election (as hereinafter defined) with OP&F and

the election has been fully completed and properly

completed by the member.

(C) "OP&F" shall mean the Ohio police and fire pension fund

created under Chapter 742. of the Revised Code.

(F) "Election" shall mean the election form that OP&F

requires in order for a member to participate in DROP, as

such form may be amended or modified from time to time by

OP&F. For those elections that have been filed with OP&F, it

shall also mean the fully and properly completed required

election that is signed by the member.

{¶ 61} Analysis begins with the observation that the April 15, 2013 letter from

respondent's general counsel is the final written decision of respondents. Essentially, the

letter sets forth the factual findings, the legal authority, and the legal reasoning of

respondents in refusing to accept relator's February 10, 2011 election form.

{¶ 62} The April 15, 2013 decision is premised upon R.C. 742.44's requirement

that, to make an election, an eligible member "shall complete and submit * * * a form

prescribed by the fund." Also, the decision is based upon Ohio Adm.Code 742-4-01(F),

which supplements the statute and provides that an election shall mean the "fully and

properly completed required election that is signed by the member."

{¶ 63} In the April 15, 2013 decision, the general counsel notes that OP&F staff

sent a letter to relator on February 11, 2011 to inform that "your DROP election form had

been altered" and that, consequently, a new form must be submitted.

{¶ 64} While the April 15, 2013 general counsel's letter itself fails to explain the

alteration, the February 11, 2011 letter explains:

In reviewing your form, we noticed that your selection has

been altered. OP&F cannot accept your application because

it is incomplete. To avoid any processing delays, please

complete the enclosed Election to Enroll in DROP, being

careful to avoid crossing out or whiting out your selections.

{¶ 65} Clearly, the February 11, 2011 OP&F letter is correct in observing that the

February 10, 2011 election form presents the "whiting out" of initial selections.

No. 14AP-968 17

{¶ 66} Thus, the general counsel's April 15, 2013 letter, in effect, identifies the

"whiting out of your selections" as the alterations that concerned the general counsel and

persuaded her to reject the February 10, 2011 election. Also, the general counsel

concluded that the election form was not "fully and properly completed" pursuant to Ohio

Adm.Code 742-4-01(F) because of the alterations.

{¶ 67} State retirement systems are creatures of statute and " 'can only act in strict

accordance with their enabling schemes.' " Poliseno v. Mitchell, 10th Dist. No. 09AP-

1001, 2010-Ohio-2615, quoting Ohio Assn. of Pub. School Emp. v. School Emp.

Retirement Sys., 10th Dist. No. 04AP-136, 2004-Ohio-7101, ¶ 23.

{¶ 68} Public retirement systems, nonetheless, are entitled to due deference in

interpreting their own statutes and rules. Poliseno at ¶ 12, citing State ex rel. Schaengold

v. Pub. Emp. Retirement Sys., 114 Ohio St.3d 147, 2007-Ohio-3760 at ¶ 23.

{¶ 69} Here, as indicated by the April 15, 2013 letter that refers to the February 11,

2011 staff letter, the general counsel expressed her concern regarding the alterations on

the February 10, 2011 election form submitted by relator. That concern regarding

alterations was, by reference, made more specific in the February 11, 2011 staff letter that

instructed that relator prepare another election form "being careful to avoid crossing out

or whiting out your selections."

{¶ 70} As earlier noted, the February 10, 2011 election form contained whiteout at

three sections of the form. At Section A, whiteout was used to cover the initial marking of

the "Single" box so that the "Divorced" box could be marked instead.

{¶ 71} At Section B, whiteout was used to cover the initial marking of the box aside

"I do want to select a payment plan" so that the box aside "I do not want to select a

payment plan" could be marked instead.

{¶ 72} At Section C, whiteout was used to cover an initial designation of a

beneficiary including that beneficiary's social security number and date of birth such that

no beneficiary is designated.

{¶ 73} While not specifically so stated by the general counsel, the multiple use of

whiteout to change initial selections at three sections of the form, where those changes

present significant substantive changes, creates a legitimate concern that relator may not

No. 14AP-968 18

have been adequately informed when she prepared the form. Thus, it was well within the

discretion of the general counsel to uphold the initial staff determination to refuse

acceptance of the February 10, 2011 election form and to inform relator that a new

election form must be completed in order for DROP benefits to begin.

{¶ 74} Relator argues that respondent's acceptance of the April 24, 2013 election

form is inconsistent with rejection of the February 10, 2011 election form because the

April 24, 2013 election form presented the same whiteout alteration at Section A as is

found on the February 10, 2011 election form.

{¶ 75} Because the February 10, 2011 election form and the April 24, 2013 form

presented very different scenarios, respondents were clearly not inconsistent in accepting

the latter election form over the earlier one.

{¶ 76} As earlier noted, Section A as to both forms, presents whiteout over the

"Single" box so that the "Divorced" box can be marked as the selection. Apparently,

respondents did not find this to be a significant or substantial problem because the latter

election form was accepted notwithstanding the use of whiteout at Section A.

{¶ 77} In a sense, one who is "Divorced" but not remarried is "Single" again. Thus,

while marking the "Divorced" box was the more accurate selection, the initial marking of

the "Single" box was not inaccurate. Significantly, Section A of the election form is

provided for member identification. That is, Section A is not used for the applicant's

selection of important choices under the DROP program. That is, whether or not to select

a payment plan under Section B and whether or not to designate a beneficiary are indeed

significant substantive selections not found under Section A. Therefore, it was not

inconsistent for respondents to accept the April 24, 2013 election form, and reject the

February 10, 2011 election form.

{¶ 78} Asserting that she never received the February 10, 2011 letter informing that

her election form was not accepted, relator endeavors to lay fault upon respondents by

pointing out that the letter was addressed to Ramona Boyd which was relator's married

name prior to her divorce in November 2000.

{¶ 79} As earlier noted, on January 29, 2001, relator completed a written request

for OP&F's customer service department on which she indicated that her name is Ramona

No. 14AP-968 19

K. Fitzgerald. Also, relator listed her address as "7723 Sherridon Trail Drive, Blacklick,

Ohio, 43004."

{¶ 80} Also, on January 8, 2001, relator completed the form provided by the City of

Columbus, Division of Fire on which she indicated a change in her marital status to

"Divorced." On that form, relator also listed the same address as found on the

January 29, 2001 document.

{¶ 81} Clearly, OP&F should have been aware on February 11, 2011 that the

currently correct name is Ramona K. Fitzgerald and not Ramona Boyd.

{¶ 82} Here, the magistrate notes a discrepancy between the street address listed

on the January 8, 2001 and January 29, 2001 documents, and the street address listed on

the February 11, 2011 letter, which was : "7723 Sherridon Dr., Blacklick, Ohio, 43004-

8178."

{¶ 83} Relator here does not mention the discrepancy between "7723 Sherridon

Dr." and "7723 Sherridon Trail Drive."

{¶ 84} Relator's focus here on the name discrepancy on the February 11, 2011 letter

is misplaced. Undisputedly, the presumption is the U.S. Postal Service would have

delivered the letter to the address presented on the letter's envelope regardless of the

name used with the address.

{¶ 85} Relator says she never received the February 11, 2011 letter. The record here

strongly suggests that the letter was sent. However, we do not need to determine why the

letter was not received as relator asserts. Clearly, relator has failed to show that

respondents' staff was at fault for the alleged non-receipt of the February 11, 2011 letter.

{¶ 86} Based upon the foregoing analysis, the magistrate concludes that relator has

failed to show that respondents abused their discretion in refusing to accept the DROP

election form relator submitted on February 10, 2011.

{¶ 87} Accordingly, it is the magistrate's decision that this court deny relator's

request for a writ of mandamus.

/S/ MAGISTRATE

KENNETH W. MACKE

No. 14AP-968 20

NOTICE TO THE PARTIES

Civ.R. 5 3(D)(3)(a)(iii) provides that a party shall not assign as

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

legal conclusion, whether or not specifically designated as a

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

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

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

53(D)(3)(b).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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