The opinion
Hildebrandt, Judge,
dissenting.
I respectfully dissent. The issue in this case is not whether Duffy is guilty of the accusations made by the appointing authority. He may very well have been appropriately removed by the Board of Commissioners. However, we cannot reach that issue because Duffy has been denied an appeal from the order of
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removal for reasons that have no basis under the law that was in effect at the time of the proceedings below. The sole issue is whether the trial court’s judgment was the product of an abuse of discretion.
Lorain City School Dist. Bd. of Edn. v. State Emp. Relations Bd.
(1988), 40 Ohio St.3d 257, 261 , 533 N.E.2d 264, 267 . I would hold that the judgment was neither unreasonable, arbitrary nor unconscionable. See
State v. Adams
(1980), 62 Ohio St.2d 151, 157 , 16 O.O.3d 169, 172-173 , 404 N.E.2d 144, 149 .
As the majority notes, the lower court ruled that paragraph eight of Cre-meens-Strong’s affidavit, which identified the envelope bearing the September 3, 1991 postal meter stamp as the one in which she mailed Duffy’s appeal to the PBR, could stand.
1
In
Bowman v. Ohio Bur. of Emp. Serv.
(1987), 30 Ohio St.3d 87 , 30 OBR 234, 507 N.E.2d 342 , the court held in the syllabus:
“Private meter postmarks are postmarks, presumptively valid and accurate, for purposes of the timely filing of an appeal to the Unemployment Compensation Board of Review under Ohio Adm.Code 4146-13-01.”
In so holding, the court reasoned:
“Private meter postmarks are official postmarks imprinted under license from the United States Postal Service (DMM Section 144.2), and metered mail is entitled to all privileges applying to the various classes of mail. (DMM Section 144.111.) The United States Postal Service requires the date shown on private meter postmarks to be the actual date of deposit of mail (or the next scheduled collection day). (DMM Section 144.471.) If the wrong date appears, a .00 postage meter impression with the correct date is stamped on the envelope by the post office. Otherwise, metered mail is not canceled or postmarked by the Postal Service. (DMM Section 144.534.) Although metered mail is subjected to only random, selective samplings to detect misuse of meters (under DMM Section 144.61), such samplings and the sanction of license revocation (DMM Section 144.23) discourage misuse of postmark meters.
“Given notice of these regulations, and in fairness to appealing parties, the only reasonable presumption is that a private meter postmark constitutes evidence of the date of deposit of the item in the mail. We conclude, therefore, that because the administrator has used the general term ‘postmark’ in Ohio Adm.Code 4146-13-01, private meter postmarks are ‘postmarks,’ presumptively valid and accurate, for purposes of timely filing of an appeal to the board under the code.” (Footnotes omitted.)
Id.
at 90 , 30 OBR at 236-237, 507 N.E.2d at 344 .
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As the majority has observed, the lower court reasoned that if actual physical delivery were the only means of complying with R.C. 124.34, such a requirement would be violative of the Equal Protection Clauses of the Ohio and United States Constitutions.
R.C. 124.328 pertains to appeals to the PBR by classified employees who have been subjected to a layoff or displacement, and provides:
“An employee may appeal a layoff, or a displacement which is the result of a layoff, to the state personnel board of review. The appeal shall be filed or postmarked no later than ten days after receipt of the notice of layoff or after the date the employee is displaced. In cases involving the laying off of classified employees the affected employee may appeal the decision of the state personnel board of review to the common pleas court. The appeal from the state personnel board of review shall be made in accordance with section 119.12 of the Revised Code.”
R.C. 124.34, which pertains to employees who have been removed from classified service for reasons that include failure of good behavior, reads, in part:
“In any case of reduction, suspension of more than three working days, or removal, the appointing authority shall furnish such employee with a copy of the order of reduction, suspension, or removal, which order shall state the reasons therefor. Such order shall be filed with the director of administrative services and state personnel board of review, or the commission, as may be appropriate.
“Within ten days following the filing of such order, the employee may file an appeal, in writing, with the state personnel board of review or the commission. In the event such an appeal is filed, the board or commission shall forthwith notify the appointing authority and shall hear, or appoint a trial board to hear, such appeal within thirty days from and after its filing with the board or commission, and it may affirm, disaffirm, or modify the judgment of the appoint ing authority.
“In cases of removal or reduction in pay for disciplinary reasons, either the appointing authority or the officer or employee may appeal from the decision of the state personnel board of review or the commission to the court of common pleas of the county in which the employee resides in accordance with the procedure provided by section 119.12 of the Revised Code.”
Ohio Adm.Code 124-1-03 provides, in part:
“(A) Except as set forth below, appeals from ‘section 124.34 orders’ shall be filed, in writing, not more than ten calendar days after the filing of an order with the state personnel board of review.
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“(B) Appeals from layoffs and job abolishment shall be in writing and shall be filed with the board, or
postmarked
not more than ten calendar days after receipt of the notice of layoff or notice of displacement.” (Emphasis added.)
As can be seen, the above section of the Administrative Code treats classified employees removed pursuant to R.C. 124.34 differently from those who suffer layoff or job abolishment. This is especially true under Ohio Adm.Code 124-11-09, which provides, in part:
“(A) A document is filed when it is received and time stamped in the office of the state personnel board of review.
“(B) For purposes of calculating the appeal time in a disciplinary action, the filing date of a ‘section 124.34 order’ is the date the order is time stamped by the state personnel board of review or the date of filing indicated on the order by the appointing authority, whichever is later. The date of filing which the appointing authority indicates on the ‘section 124.34 order’ shall be a date not more than ten days after the effective date of the order.”
In
Porter v. Oberlin
(1965), 1 Ohio St.2d 143 , 30 O.O.2d 491 , 205 N.E.2d 363 , the court held in the second paragraph of the syllabus:
“Legislation must apply alike to all persons within a class, and reasonable grounds must exist for making a distinction between those within and those without a designated class. Within the limits of these restrictive rules, a legislative body has a wide measure of discretion.”
More recently, the court explained that a statute must be upheld “if there exists any conceivable set of facts under which the classification rationally furthered a legitimate legislative objective.”
Denicola v. Providence Hosp.
(1979), 57 Ohio St.2d 115, 119 , 11 O.O.3d 290, 293 , 387 N.E.2d 231, 234 .
Based upon the above authority, I agree with the lower court’s determination that permitting some classified employees to perfect their appeals to the PBR by a timely postmark, while other classified employees must perfect their appeals by ensuring that such appeals are received and time-stamped by the PBR, raises equal protection concerns. Further, pursuant to
Bowman, supra,
Duffy’s postage-metered envelope raises the presumption that the appeal was mailed within the prescribed time. Under these circumstances, I am not persuaded that the decision of the trial court was unreasonable, arbitrary or unconscionable. I would, therefore, affirm the judgment of the court of common pleas.
1
. I would also hold that the third paragraph of Cremeens-Strong’s affidavit should stand. There, she avers that she mailed the notice of appeal to the PBR on September 3, 1991. However, the fact that it was stricken does not affect this analysis.