State ex rel. Beavercreek Twp. Fiscal Officer v. Graff (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State

ex rel. Beavercreek Twp. Fiscal Officer v. Graff, Slip Opinion No. 2018-Ohio-3749.]

NOTICE

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promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

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the opinion is published.

SLIP OPINION NO. 2018-OHIO-3749

THE STATE EX REL. BEAVERCREEK TOWNSHIP FISCAL OFFICER v. GRAFF ET

AL.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as State ex rel. Beavercreek Twp. Fiscal Officer v. Graff, Slip

Opinion No. 2018-Ohio-3749.]

Mandamus—R.C. 507.021(A) unambiguously requires township fiscal officer to

obtain board of township trustees’ approval for salary offered to assistants

hired under R.C. 507.021(A)—Fiscal officer failed to show board abused

its discretion in rejecting her salary proposals—Board exceeded its

authority under R.C. 507.021(A) in setting the assistants’ salaries—Writ

granted in part and denied in part.

(No. 2016-0747—Submitted January 23, 2018—Decided September 20, 2018.)

IN MANDAMUS.

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Per Curiam.

{¶ 1} In this original action, relator, Beavercreek Township Fiscal Officer

Christy L. Ahrens, seeks a writ of mandamus to compel respondents, the Board of

Beavercreek Township Trustees and its members, Carol Graff, Jeffrey Roberts, and

Thomas Kretz (collectively, “the board”), to approve and fund the salaries of two

positions in the fiscal office in the amount she proposed.

{¶ 2} We conclude that R.C. 507.021(A) authorizes Ahrens to hire two

assistants to the fiscal officer and to set compensation for those positions, subject

to prior approval by the board. But because she has not demonstrated that the board

abused its discretion when it denied her specific salary requests, we deny her

request for a writ of mandamus compelling the board to approve and fund the two

assistant positions at the specific salaries that she proposed. In addition, we

conclude that the board exceeded its authority when it adopted Resolutions 2016-

158 and 2016-159 setting the annual salaries for the two assistants to the fiscal

officer. Accordingly, we issue a writ of mandamus ordering the board to rescind

Resolutions 2016-158 and 2016-159 and to consider a new compensation proposal

submitted by Ahrens.

Background

{¶ 3} Ahrens has been the fiscal officer for Beavercreek Township since

2006. In 2006, the board hired Deb White as a full-time accounts-payable/payroll

technician. White reported to the assistant to the fiscal officer. According to the

job description submitted as evidence, her basic responsibilities included record-

keeping; reviewing the purchasing process “for proper account distribution,

outdated purchase orders and reconciliation of vendor invoices;” and

“[d]ocument[ing] and updat[ing] accounts payable procedures and accounting

manuals.” White’s annual salary was $53,872 in 2014 and $55,494.40 in 2015. An

annual salary of $57,158.40 was originally budgeted for 2016.

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{¶ 4} In 2007, Ahrens appointed James Barone to the full-time position of

assistant to the fiscal officer. Barone reported to Ahrens and, according to the job

description submitted as evidence, was involved in “planning, organizing,

coordinating and directing [the] activities of the Office of [the] Fiscal Officer,” and

in addition to other duties, he was “[r]esponsible for monitoring, preparing, and

posting all revenues; monitoring all fixed assets (purchasing, transfers, and

disposal); and * * * preparing and filing financial statements and reports (monthly,

quarterly, and yearly).” In 2014, Barone’s annual salary was $76,507.60.

{¶ 5} On November 14, 2014, Kretz and the township administrator, J.

Alexander Zaharieff, met with Ahrens to discuss the creation of a township finance

department that would be led by a finance director, who would report to the

township administrator rather than to the fiscal officer. According to Ahrens, Kretz

informed her that Barone would be hired as the finance director at the same salary

and with the same responsibilities as he currently had as her assistant and that if she

did not agree to the change, the board could defund the position of assistant to the

fiscal officer. (Kretz denies threatening to defund the assistant position.) The board

discussed its power to fund and defund positions at a March 9, 2015 special

meeting.

{¶ 6} On March 16, 2015, the board created a finance department—whose

employees would report to the township administrator—and it approved the

proposed job description for the finance-director position. The board also approved

a new township organizational structure that gave the township administrator

supervising authority over the accounts-payable/payroll technician, thus

eliminating the fiscal officer’s supervising authority.

{¶ 7} On March 30, 2015, the board appointed Barone the finance director

at the same salary he was making as assistant to the fiscal officer, $78,080.88.

Barone’s 2016 salary was budgeted at $81,167.06.

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{¶ 8} R.C. 507.021(A) authorizes a fiscal officer to “hire and appoint one

or more persons as the fiscal officer finds necessary to provide assistance to the

township fiscal officer or deputy fiscal officer” and to “set the compensation of

those persons subject to the prior approval of the board of township trustees.” On

February 12, 2016, Ahrens’s attorney contacted the board’s attorney with a

proposal to hire two assistants to the fiscal officer pursuant to R.C. 507.021(A).

The first assistant to the fiscal officer would earn an annual salary between $75,000

and $92,000 (the parties herein refer to this position as the “lead assistant” position).

The second assistant to the fiscal officer would earn an annual salary between

$50,000 and $65,000 (the parties herein refer to this position as the accounts-

payable/payroll-assistant position). The lead assistant would report directly to the

fiscal officer, and the accounts payable/payroll assistant would report to the lead

assistant. According to Ahrens’s attorney, the lead assistant would perform the

duties “formerly performed by the assistant to the fiscal officer position, prior to

the creation of the finance director position” and the accounts-payable/payroll

assistant would perform “most of the duties” of the accounts-payable/payroll-

technician position.

{¶ 9} On March 28, 2016, the board discussed Ahrens’s proposal and

adopted four resolutions:

(1) Resolution 2016-160 eliminated the position of finance director, effective

May 9, 2016.

(2) Resolution 2016-161 eliminated the position of accounts-payable/payroll

technician under the finance director and township administrator, effective

May 9, 2016.

(3) Resolution 2016-158 authorized the lead-assistant position at an annual

salary of $40,515.

(4) Resolution 2016-159 authorized the position of accounts-payable/payroll

assistant under the fiscal officer at an annual salary of $28,200.

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In May 2016, the board approved a $5,000 salary increase for each of the

new positions.

{¶ 10} Ahrens alleges that under R.C. 507.021(A), the board must approve

the fiscal officer’s proposed compensation for her assistants and allocate the

necessary funds absent an abuse of discretion by the fiscal officer. Ahrens requests

a writ of mandamus directing the board to approve and fund the proposed salaries

for the lead-assistant and accounts-payable/payroll-assistant positions.

Analysis

{¶ 11} To be entitled to a writ of mandamus, Ahrens must establish (1) a

clear legal right to the requested relief, (2) a corresponding clear legal duty on the

part of the board to provide it, and (3) the lack of an adequate remedy in the ordinary

course of law. State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69,

960 N.E.2d 452, ¶ 6. Ahrens must prove her entitlement to the writ by clear and

convincing evidence. State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-

6117, 958 N.E.2d 1235, paragraph three of the syllabus.

{¶ 12} Ahrens’s mandamus claim hinges on her authority and the board’s

obligation under R.C. 507.021(A).

R.C. 507.021(A)

{¶ 13} The board argues in its brief that R.C. 507.021(A) grants it the

“discretion to approve and appropriate amounts for the fiscal officer and,

specifically, for amounts to be paid to any assistants.” In its view, when a funding

dispute arises, R.C. 507.021(A) places the burden on the township fiscal officer to

prove that her request was reasonable and that the board of trustees abused its

discretion in denying the request.

{¶ 14} By contrast, Ahrens argues that R.C. 507.021(A) gives the township

fiscal officer the primary authority to set the compensation of any assistants hired

under that provision. In her brief, she urges us to hold that under the current version

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of R.C. 507.021(A), the “requested appropriation must be made, unless the trustees

prove that the request is an abuse of discretion.”

{¶ 15} When this court seeks to ascertain the meaning of a statute, the

threshold question is whether it is ambiguous. Jacobson v. Kaforey, 149 Ohio St.3d

398, 2016-Ohio-8434, 75 N.E.3d 203, ¶ 8. “It is a cardinal rule of statutory

construction that where the terms of a statute are clear and unambiguous, the statute

should be applied without interpretation.” Wingate v. Hordge, 60 Ohio St.2d 55,

58, 396 N.E.2d 770 (1979). When a statute contains language that “ ‘is plain and

unambiguous, and conveys a clear and definite meaning, [this court] must rely on

what the General Assembly has said’ * * * and give effect only to the words the

legislature used, making neither additions to, nor deletions from, the statutory

language.” Wilson v. Lawrence, 150 Ohio St.3d 368, 2017-Ohio-1410, 81 N.E.3d

1242, ¶ 11, quoting Jones v. Action Coupling & Equip., Inc., 98 Ohio St.3d 330,

2003-Ohio-1099, 784 N.E.2d 1172, ¶ 12.

{¶ 16} R.C. 507.021(A) is not ambiguous. It expressly grants to a township

fiscal officer the authority to decide whether assistants need to be hired and if so,

whom to hire for those positions. The second sentence of the statutory provision at

issue grants the fiscal officer the authority to set the compensation for the assistants,

“subject to the prior approval of the board of township trustees.” (Emphasis added.)

This language clearly indicates that the General Assembly intentionally constrained

the fiscal officer’s ability to set her own assistants’ salary; it makes board approval

a prerequisite to the determination of the salary of a fiscal-officer’s assistant.

{¶ 17} On the other hand, the plain language also contains a limitation on

the board’s authority; it may either grant or withhold its approval of a fiscal

officer’s compensation proposal, but it may not, as it did here, withhold approval

and set the compensation for the fiscal officer’s assistants. Thus, the board lacked

the authority to adopt Resolutions 2016-158 and 2016-159. Thus, we hold that R.C.

507.021(A) unambiguously requires a fiscal officer to obtain board approval for the

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January Term, 2018

salary offered to any assistant hired under this section and it allows the board to

either approve or deny the salary proposal. However, the board does not have

authority under R.C. 507.021(A) to set the salaries for the fiscal officer’s assistants.

{¶ 18} Ahrens points to the prior version of R.C. 507.021(A) as proof that

the legislature enacted the current language to give the fiscal officer primary power

over setting the salaries for fiscal-office employees. In support of her argument,

she invokes the rule of statutory interpretation that provides that “[a] legislative

amendment must be presumed to change the effect and operation of the law.”

Lynch v. Gallia Cty. Bd. of Commrs., 79 Ohio St.3d 251, 257-258, 680 N.E.2d 1222

(1997). Prior to 2004, R.C. 507.021 provided that “[t]he board of township trustees

may employ such number of persons as it finds necessary to provide stenographic

and clerical assistance to the township clerk or deputy clerk.” Am.Sub.H.B. No.

441, 133 Ohio Laws, Part II, 2193. (The term “fiscal officer” was substituted for

“clerk” in 2005.) Sub.S.B. No. 107, 151 Ohio Laws, Part I, 406, 458. In 2004, the

General Assembly gave the clerk (fiscal officer) the power to decide whether to

hire assistants and whom to hire as assistants and also the power to propose the

salary for those assistants, subject to approval from the board. Ahrens argues in

her brief that “[i]f this change is to mean anything, then the current language of

R.C. 507.021(A) places the power of setting compensation primarily with the

township fiscal officer.”

{¶ 19} But as explained above, the language of R.C. 507.021(A) is

unambiguous. Indeed, Ahrens’s interpretation of R.C. 507.021(A) would render

the phrase “subject to the prior approval of the board of township trustees”

meaningless and thus fails to give effect to the words the legislature used. See

Columbia Gas Transm. Corp. v. Levin, 117 Ohio St.3d 122, 2008-Ohio-511, 882

N.E.2d 400, ¶ 19 (When interpreting statutes, “[c]ourts may not delete words used

or insert words not used”). The effect of the legislative change was clearly to give

the fiscal officer some authority over her own budget, but in order to hold that she

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has exclusive authority to set compensation, we would need to disregard the

unambiguous statutory language, which we will not do. R.C. 507.021(A) requires

the fiscal officer to obtain the board’s approval before she sets the compensation

for her assistants. .

{¶ 20} Because the statute does not grant the fiscal officer exclusive

authority to set the compensation of her assistants, mandamus cannot be used to

compel the board to approve her compensation request absent a showing that the

board abused its discretion in denying the request. State ex rel. Veterans Serv.

Office of Pickaway Cty. v. Pickaway Cty. Bd. of Commrs., 61 Ohio St.3d 461, 463,

575 N.E.2d 206 (1991). In Veterans Serv. Office, a county veterans-service

commission sought a writ of mandamus to compel a board of county commissioners

to appropriate the full amount it requested. In denying the writ, we noted that the

relevant statute provided for “review and revision” by the board of the

commission’s budget request and held that the commission was not automatically

entitled to its full request and that it could not compel the board to grant the request

absent a showing that its denial was an abuse of discretion. Id. at 462-463.

{¶ 21} Because R.C. 507.021(A) calls for the prior approval of the board of

township trustees, we reach a conclusion here analogous to the conclusion in

Veterans Serv. Office: the board’s decision whether to approve or reject the fiscal

officer’s compensation proposal is entitled to a presumption of reasonableness. In

other words, R.C. 507.021(A) grants the fiscal officer the authority to propose to

the board the compensation her assistants should receive, but if the board rejects

that proposal, the burden is on the fiscal officer to show that the board abused its

discretion in denying her request. See also State ex rel. Trussell v. Meigs Cty. Bd.

of Commrs., 155 Ohio App.3d 230, 2003-Ohio-6084, 800 N.E.2d 381 (4th Dist.)

(statute does not grant sheriff final authority for appropriations to his office and

therefore he is not entitled to a writ of mandamus to compel the board of

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commissioners to approve his full budget request absent a demonstration that the

board abused its discretion in denying the request).

{¶ 22} Accordingly, to be entitled to the requested writ of mandamus,

Ahrens must demonstrate, by clear and convincing evidence, that the board abused

its discretion when it rejected her compensation proposal.

Abuse of discretion

{¶ 23} To demonstrate an abuse of discretion, Ahrens must show that the

board acted arbitrarily, unreasonably, or unconscionably in rejecting the

compensation request. See State ex rel. Wilke v. Hamilton Cty. Bd. of Commrs., 90

Ohio St.3d 55, 61, 734 N.E.2d 811 (2000) (“ ‘abuse of discretion’ implies an

unreasonable, arbitrary, or unconscionable attitude”).

{¶ 24} Ahrens contends in her reply brief that the board used “bad math” in

rejecting her proposal and awarding lower salaries for the two assistant positions.

She criticizes the survey that was submitted as evidence by the board in support of

its rejection of her proposal. The survey shows the salaries paid to persons in

similar positions in other Ohio townships, and it indicates various factors related to

each position, including the title of the position, whether the position is full-time or

part-time, the hourly rate/annual salary of the position, the population of the

township, the 2013 general-fund revenues of the township, and the 2013 total

revenues of the township. The survey indicated an average annual salary of

$39,801.82 for positions similar to the lead-assistant position and an average annual

salary of $29,322.80 for positions similar to the accounts-payable/payroll-assistant

position. The board also compared and took into account the job descriptions for

the new lead-assistant and accounts-payable/payroll-assistant positions that it

created versus the job descriptions provided by many of the surveyed counties.

{¶ 25} Ahrens argues that the salary survey was flawed because it included

both full-time and part-time positions, resulting in a lower average salary. She also

argues that the survey included positions that were more comparable to the

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accounts-payable/payroll-assistant position in determining the average salary for

the lead-assistant position. To illustrate her point, Ahrens points to the job

description for the position of “fiscal analyst II” in Sylvania Township that was

included in the survey. There is a handwritten notation at the top of the page that

reads, “Comparable to: Account Payable $17.18 hr. 10 yr. service.” In addition,

the salary survey for the accounts-payable/payroll-assistant position includes 20

allegedly comparable positions, only seven of which are full-time positions.

Because the board approved two full-time positions, the fact that it relied on data

from part-time positions in other counties does detract from the weight of that

evidence.

{¶ 26} Yet despite the shortcomings of the survey, Ahrens has not produced

evidence to demonstrate that the board abused its discretion. In fact, the survey of

comparable township positions that she submitted as evidence is not without fault.

Referring to her survey, Ahrens contends that the salary ranges she proposed for

the lead-assistant and accounts-payable/payroll-assistant positions were “in line

with * * * similar positions with other nearby townships.” However, her salary

survey lacks information about the townships, which is necessary to support

comparison, and therefore is insufficient to satisfy her burden of proof.

{¶ 27} She further argues that the unreasonableness of the board’s decision

is demonstrated by the fact that “[t]he two Assistant positions are almost identical

to the Finance Director and Accounts Payable/Payroll Technician positions” that

were previously funded. Although there are many overlaps in the duties of the prior

positions and the new assistant positions, Ahrens fails to take into account

noteworthy differences. For example, the finance-director position included the

duties of providing revenue forecasts and assisting the township administrator in

preparing the township budget and five-year departmental financial forecasts. The

lead-assistant position that Ahrens proposed does not include these duties. Because

preparing the budget is a significant duty, this change supports the board’s claim

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that the lead-assistant position differs significantly from the finance-director

position.

{¶ 28} In addition, the board acted reasonably by taking into account the

township’s financial condition when it considered Ahrens’s proposal. The board

emphasizes in its brief that it considered “the ongoing need to balance the general

fund budget, and the years of the Township’s general fund expenditures that

exceeded the revenues and caused a reduction in carryover funds.” Moreover,

evidence in the record demonstrates that Ahrens publicly commented on the poor

financial condition facing the township, criticizing the board as engaging in deficit

spending. Therefore, it was not unreasonable or arbitrary for the board to consider

the township’s financial condition when reviewing Ahrens’s proposed

compensation for the two assistants, which, combined, would have cost the

township over $100,000 in salary alone.

{¶ 29} Nor does the evidence support Ahrens’s complaint that in rejecting

her proposed salaries, the board was singling out her office to receive budget cuts.

Ahrens argues that Trustee Graff conceded in a March 28, 2016 board meeting that

the board was cutting the salaries of the fiscal-office employees in half while

leaving all other office’s budgets intact. But taken in context, Graff’s comments

do not support Ahrens’s claim that no other office’s budget would be cut; the only

salaries at issue at the March 28th meeting were those proposed by Ahrens. Graff’s

comments alone do not support Ahrens’s claim that the board acted arbitrarily and

unreasonably in rejecting her proposed salaries.

{¶ 30} In conclusion, Ahrens has not presented clear and convincing

evidence that the board abused its discretion in rejecting her proposed salaries. But

we also hold that the board exceeded its authority under R.C. 507.021(A) when it

set the salaries for Ahrens’s assistants. Accordingly, we issue a writ of mandamus

ordering the board of trustees to rescind Resolutions 2016-158 and 2016-159 and

to consider a new compensation proposal from Ahrens.

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Writ granted in part

and denied in part.

O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, FISCHER, and

DEWINE, JJ., concur.

DEGENARO, J., not participating.

_________________

Andrew P. Pickering, Special Assistant Greene County Prosecuting

Attorney, for relator.

Surdyk, Dowd & Turner Co., L.P.A. and Dawn M. Frick, for respondents.

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