The opinion
Whiteside, Presiding Judge,
dissenting.
Being unable to concur in the majority opinion and judgment, I must respectfully dissent.
In effect, this court, like the trial court, is affirming a finding not made by the State Personnel Board of Review (“SPBR”). Instead, this case should be remanded to the SPBR to make the initial determination of whether appellant was the chief of a division, an issue not determined by SPBR. Rather, the SPBR found that, since appellant held a fiduciary position within the contemplation of R.C. 124.11(A)(9), his position was automatically in the unclassified service without consideration of the effect of R.C. 5101.07 allegedly placing it in the classified service.
Even assuming the factual analysis of the majority opinion to be correct, such a determination should be made initially by the SPBR, not the common pleas court or this court.