State ex rel. Tarrier v. Pub. Emps. Retirement Bd. (Slip Opinion)

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

ex rel. Tarrier v. Pub. Emps. Retirement Bd., Slip Opinion No. 2021-Ohio-649.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

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

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

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2021-OHIO-649

THE STATE EX REL. TARRIER, APPELLANT, v. PUBLIC EMPLOYEES

RETIREMENT BOARD, APPELLEE.

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

may be cited as State ex rel. Tarrier v. Pub. Emps. Retirement Bd., Slip

Opinion No. 2021-Ohio-649.]

Mandamus—Writ sought by public employee ordering retirement board to transfer

her from one type of retirement plan to different type of plan—No provision

in R.C. Chapter 145 establishes clear legal right for public employee to

obtain relief sought or imposes clear legal duty on retirement board to grant

it—Court of appeals’ denial of writ affirmed.

(No. 2020-0454—Submitted January 12, 2021—Decided March 10, 2021.)

APPEAL from the Court of Appeals for Franklin County, No. 18AP-12,

2020-Ohio-681.

__________________

Per Curiam.

SUPREME COURT OF OHIO

{¶ 1} Appellant, Kathy L. Tarrier, asked the Tenth District Court of Appeals

for a writ of mandamus ordering appellee, the Public Employees Retirement Board,

to transfer her from the “combined” plan in the Ohio Public Employees Retirement

System (“the retirement system” or “the system”) to the “traditional” plan. The

Tenth District denied the writ. On direct appeal, Tarrier asserts six propositions of

law, some sounding in mandamus and some in common-law tort. She has also filed

a motion for oral argument.

{¶ 2} We deny the motion for oral argument and affirm the Tenth District’s

judgment. Tarrier has not established a clear legal right to the relief she seeks or a

clear legal duty on the part of the board to provide it, so she is not entitled to a writ

of mandamus. And this court and the court of appeals lack original jurisdiction

over her common-law tort claims.

I. FACTS AND PROCEDURAL HISTORY

{¶ 3} Tarrier began working for the Franklin County Public Defender’s

Office (“the office”) on October 8, 1987. At that time, employees of the office were

deemed to not be public employees, so they did not participate in the retirement

system. State ex rel. Altman-Bates v. Pub. Emps. Retirement Bd., 148 Ohio St.3d

21, 2016-Ohio-3100, 68 N.E.3d 747, ¶ 3, 9.

{¶ 4} Decades-long litigation over the status of the office’s employees

resulted in several decisions by this court. In 1998, we held that an employee of

the office hired before 1985 was a public employee. State ex rel. Mallory v. Pub.

Emps. Retirement Bd., 82 Ohio St.3d 235, 241, 694 N.E.2d 1356 (1998). We

therefore ordered the board to grant the employee in that case service credit in the

retirement system. Id. at 245-246.

{¶ 5} After the Mallory decision, all employees of the office were declared

public employees and enrolled in the retirement system as of January 1, 1999.

Altman-Bates at ¶ 13. But the pre-1999 service of employees hired on January 1,

1985, through the end of 1998 was still not considered public employment, and no

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retirement-system credit was granted for it. Id. Accordingly, Tarrier became a

member of the retirement system on January 1, 1999, but did not receive credit for

her service between October 8, 1987, and that date.

{¶ 6} When Tarrier first enrolled in the system, it offered only one

retirement plan: the “traditional” plan. And as the court of appeals recognized in

its opinion in this case, Tarrier was therefore automatically placed in that plan.

2020-Ohio-681, ¶ 26. Under the traditional plan, participants and their employers

pay into funds managed by the board and participants receive a defined retirement

benefit based on their years of service and final average salary. Id. at ¶ 59; R.C.

145.01(DDD) and 145.33; Ohio Adm.Code 145-1-81(A)(1).

{¶ 7} The board subsequently created two additional retirement plans after

the General Assembly enacted legislation instructing it to do so. In the “member-

directed” plan, participants and their employers make defined contributions to an

individual retirement account and participants receive a retirement benefit based

solely on the amount that has accumulated in the account. R.C. 145.01(EEE) and

145.81; Ohio Adm.Code 145-1-81(A)(3). In the “combined” plan, participants

contribute to an individual retirement account while their employers contribute to

the defined-benefit fund, entitling participants to a retirement benefit based on the

amount accumulated in the individual account plus a defined retirement benefit,

which is calculated at a lower percentage than in the traditional plan. R.C.

145.01(EEE) and 145.81; Ohio Adm.Code 145-1-81(A)(2) and 145-3-01(B); see

The Public Employees Retirement System of Ohio Combined Defined

Benefit/Defined Contribution Plan, Articles III and IX, available at

https://www.opers.org/pdf/legal/2019-03-22-Combined-Plan-Eff.pdf (accessed

Jan. 26, 2021) [https://perma.cc/VR8P-7G64].

{¶ 8} Under R.C. 145.191(A), participants who had less than five years of

service credit as of December 31, 2002, were permitted to transfer from the

traditional plan to the member-directed or combined plan by making an election no

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later than June 30, 2003. On May 27, 2003, Tarrier—who at the time had less than

five years of service credit—elected to switch to the combined plan. Accordingly,

effective January 1, 2003, her accumulated employee contributions were

transferred to the combined plan and her service credit in the traditional plan was

canceled. R.C. 145.191(C) and (E). Under R.C. 145.191(E), Tarrier’s election to

transfer to the combined plan was irrevocable, except as provided in R.C. 145.814.

R.C. 145.814 would permit Tarrier to switch back to the traditional plan on a going-

forward basis. But pursuant to R.C. 145.814(D) and Ohio Adm.Code 145-2-18,

she would have to purchase her past service credit.

{¶ 9} In September 2003, the board’s staff rejected a request from numerous

employees of the office seeking service credit for their pre-1999 employment, and

the board later upheld the rejection without actually considering the merits of the

request based on this court’s decision in State ex rel. Van Dyke v. Pub. Emps.

Retirement Bd., 99 Ohio St.3d 430, 2003-Ohio-4123, 793 N.E.2d 438. Altman-

Bates, 148 Ohio St.3d 21, 2016-Ohio-3100, 68 N.E.3d 747, at ¶ 14. But in 2008,

we affirmed the Tenth District’s granting of a writ ordering the board to adjudicate

the claims for pre-1999 service credit on their merits. State ex rel. Davis v. Pub.

Emps. Retirement Bd., 120 Ohio St.3d 386, 2008-Ohio-6254, 899 N.E.2d 975, ¶ 36,

44. In 2010, the board denied the claims. Altman-Bates at ¶ 17.

{¶ 10} Several employees of the office—not including Tarrier—sought

relief in mandamus. Id. at ¶ 1, 18. In May 2016, in Altman-Bates, we held that

employees of the office hired before October 1992 were public employees. Id. at

¶ 31. We therefore issued a writ of mandamus ordering the board to grant service

credit to three of the relators in that case for their work prior to 1999. Id. at ¶ 31,

33.

{¶ 11} After we issued the writ in Altman-Bates, the board granted Tarrier

credit for her pre-1999 service as an employee who was similarly situated to the

relators in that case. The board billed Franklin County for both the employee and

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employer contributions for Tarrier’s pre-1999 service under R.C. 145.483. It then

applied the service credit under R.C. 145.483 and 145.23 and Ohio Adm.Code 145-

1-31. The board credited both the delinquent employee and employer contributions

to the defined-benefit portion of the combined plan, but no credit was made to the

defined-contribution portion, i.e., to Tarrier’s individual retirement account.

{¶ 12} Tarrier requested that the board fund her individual account or that

she be transferred to the traditional plan with full credit for her pre-1999 service.

The board denied the request.

{¶ 13} In January 2018, Tarrier filed this action in the Tenth District,

seeking a writ of mandamus ordering the board to return her to the traditional plan.

The magistrate recommended that the Tenth District grant the writ on the basis that

Tarrier’s 2003 election to switch to the combined plan was legally impermissible.

2020-Ohio-681 at ¶ 2. However, the Tenth District sustained the board’s objection

to that recommendation and denied the writ. Id. at ¶ 52. Tarrier appealed.

II. ANALYSIS

{¶ 14} For ease of analysis, we address Tarrier’s propositions of law out of

order, in two groups. (Proposition of law No. II is discussed in both groups.)

A. Tarrier Has Not Established a Clear Legal Right to the Relief She Seeks

(Proposition of Law Nos. I, II, V, and VI)

{¶ 15} To prevail on her mandamus claim, Tarrier must establish a clear

legal right to the requested relief, a clear legal duty on the part of the board to

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

State ex rel. Domhoff v. Ohio Pub. Emps. Retirement Sys. Bd., 140 Ohio St.3d 284,

2014-Ohio-3688, 17 N.E.3d 569, ¶ 13. She must make this showing by clear and

convincing evidence. Id. Because Tarrier had no statutory right to appeal the

board’s decision to deny her transfer request, see Ohio Adm.Code 145-1-09(A),

Tarrier has established that she lacks an adequate remedy in the ordinary course of

the law, State ex rel. Pipoly v. State Teachers Retirement Sys., 95 Ohio St.3d 327,

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2002-Ohio-2219, 767 N.E.2d 719, ¶ 14. With respect to the remaining criteria,

mandamus relief is appropriate if the board abused its discretion, i.e., if its decision

was unreasonable, arbitrary, or unconscionable. Domhoff at ¶ 14.

1. Proposition of Law Nos. I and V

{¶ 16} In proposition of law No. I, Tarrier argues that in Altman-Bates, we

ordered the board to place her and all employees like her in the positions that they

would have been in had they been treated as public employees from the outset, i.e.,

in her case, a member of the traditional plan. In proposition of law No. V, she

makes a corollary argument: that her service credit was granted pursuant to our

directive in Altman-Bates, not R.C. 145.483, so the board abused its discretion by

applying that statute when effectuating her service credit.

{¶ 17} We reject both of those propositions of law. First, the writ in

Altman-Bates applied only to the original relators in that case: “a writ of mandamus

is granted to compel the board to award service credit to Altman-Bates, Neyerlin,

and Steele.” Altman-Bates, 148 Ohio St.3d 21, 2016-Ohio-3100, 68 N.E.3d 747, at

¶ 33. Tarrier asserts that our holding in Altman-Bates is nevertheless “the law of

the case.” However, the law-of-the-case doctrine applies only to later proceedings

within the same case. See Farmers State Bank v. Sponaugle, 157 Ohio St.3d 151,

2019-Ohio-2518, 133 N.E.3d 470, ¶ 22 (“The law-of-the-case doctrine provides

that legal questions resolved by a reviewing court in a prior appeal remain the law

of that case for any subsequent proceedings at both the trial and appellate levels”

[emphasis added]). Tarrier’s service credit was granted not by this court in Altman-

Bates but by the board, in accordance with its policy to treat similarly situated

employees similarly.

{¶ 18} Second, our writ in Altman-Bates instructed the board to grant

service credit to three of the relators in that case, but it was silent as to how the

board was to do so. Altman-Bates at ¶ 31, 33. Our decision did not render the

provisions of the Revised Code governing the granting of service credit

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January Term, 2021

inapplicable to Tarrier. In any event, “This court cannot create a legal duty

enforceable in mandamus; only the General Assembly has that authority.” State ex

rel. Perry Twp. Bd. of Trustees v. Husted, 154 Ohio St.3d 174, 2018-Ohio-3830,

112 N.E.3d 889, ¶ 13.

{¶ 19} Third, the applicable statutes, R.C. 145.483 and 145.23, delineate

which board-managed funds delinquent contributions are to be credited into, but

they impose no duty on the board to allow a participant to switch retirement plans

(or revert to a previous plan) in the event that delinquent contributions are received

under R.C. 145.483.1

2. Proposition of Law No. II

{¶ 20} In proposition of law No. II, Tarrier argues that the board violated a

fiduciary duty imposed by R.C. 145.11(A).2 That statute provides:

The members of the public employees retirement board shall

be the trustees of the funds created by section 145.23 of the Revised

Code. The board shall have full power to invest the funds. The

board and other fiduciaries shall discharge their duties with respect

to the funds solely in the interest of the participants and

beneficiaries; for the exclusive purpose of providing benefits to

participants and their beneficiaries and defraying reasonable

expenses of administering the public employees retirement system;

1. R.C. 145.23(B) provides that amounts paid by an employer under R.C. 145.483 for members

participating in a defined-contribution plan “may be credited to the defined contribution fund.”

(Emphasis added.) However, Ohio Adm.Code 145-1-31(F)(4) provides for crediting individual

accounts only when delinquent contributions are received for participants in the member-directed

plan, not the combined plan. In any event, Tarrier has not sought a writ ordering the board to credit

her individual account.

2. Section II(B) of this opinion addresses Tarrier’s assertion in proposition of law No. II of a

common-law claim for breach of fiduciary duty. However, that proposition also alleges the

existence of a statutory duty, which the court of appeals treated as being “subsumed into [Tarrier’s]

request for a writ of mandamus.” 2020-Ohio-681 at ¶ 52.

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with care, skill, prudence, and diligence under the circumstances

then prevailing that a prudent person acting in a like capacity and

familiar with these matters would use in the conduct of an enterprise

of a like character and with like aims; and by diversifying the

investments of the system so as to minimize the risk of large losses,

unless under the circumstances it is clearly prudent not to do so.

{¶ 21} We reject this aspect of proposition of law No. II. To prevail on a

mandamus claim, the relator must establish that the respondent has a clear legal

duty to provide the requested relief. Domhoff, 140 Ohio St.3d 284, 2014-Ohio-

3688, 17 N.E.3d 569, at ¶ 13. R.C. 145.11(A) imposes upon the board a general

duty to safeguard and prudently invest the funds entrusted to it. It does not impose

a clear legal duty to transfer Tarrier to the traditional plan.

3. Proposition of Law No. VI

{¶ 22} In proposition of law No. VI, Tarrier argues that her 2003 election

to switch to the combined plan was legally impermissible under R.C. 145.191,

because, when the additional pre-1999 service credit she received in 2016 is taken

into account, she did not actually have less than five years of service as of December

31, 2002. She argues that she is therefore entitled to a writ ordering the board to

place her back in the traditional plan.

{¶ 23} We reject this proposition of law because Tarrier’s election was

permissible at the time it was made. R.C. 145.191(A) provides that a participant

“who, as of December 31, 2002, has less than five years of total service credit is

eligible to make an election under this section.” (Emphasis added.) R.C.

145.191(E) expressly made that election irrevocable unless Tarrier elected to

purchase her service under R.C. 145.814. As the Tenth District explained, R.C.

145.191(E) contains no exception to the election’s irrevocability in the event that

delinquent contributions are paid under R.C. 145.483 and imposes no duty to treat

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service credit granted after December 31, 2002, as retroactive. See 2020-Ohio-681

at ¶ 41-42.

{¶ 24} Tarrier acknowledges that no other statute mandates the result she

seeks. She avers that a representative of the retirement system told her that the

system “just need[s] a judge to tell us to put you back in Traditional.” However,

this court cannot create a duty that is enforceable in a mandamus action. Perry

Twp. Bd. of Trustees, 154 Ohio St.3d 174, 2018-Ohio-3830, 112 N.E.3d 889, at

¶ 13.

B. This Court and the Court of Appeals Lack Original Jurisdiction Over

Tarrier’s Common-Law Tort Claims

(Proposition of Law Nos. II, III, and IV)

{¶ 25} In proposition of law Nos. II, III, and IV, Tarrier asserts that the

board committed four common-law torts: breach of fiduciary duty, negligent

misrepresentation, fraud, and conversion.3 Tarrier did not plead any of these claims

in her complaint, so they are not properly before us. State ex rel. Ullmann v. Klein,

160 Ohio St.3d 457, 2020-Ohio-2974, 158 N.E.3d 580, ¶ 9 (refusing to consider

claims not raised in the relator’s complaint). More importantly, even if she had

properly raised them, neither this court nor the court of appeals has original

jurisdiction over those causes of action. Ohio Constitution, Article IV, Sections

2(B)(1) (this court) and 3(B) (court of appeals). Accordingly, we reject this aspect

of proposition of law No II and also reject proposition of law Nos. III and IV.

III. ORAL ARGUMENT

{¶ 26} In a direct appeal, the granting of a request for oral argument is

subject to this court’s discretion. S.Ct.Prac.R. 17.02(A). In exercising that

discretion, we consider whether the case involves (1) a matter of great public

3. Section II(A)(2) of this opinion addresses Tarrier’s assertion in proposition of law No. II that the

board violated a statutory fiduciary duty. However, that proposition also sets forth the elements of

a common-law breach-of-fiduciary-duty claim.

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importance, (2) complex issues of law or fact, (3) a substantial constitutional issue,

or (4) a conflict among courts of appeals. See State ex rel. BF Goodrich Co.,

Specialty Chems. Div. v. Indus. Comm., 148 Ohio St.3d 212, 2016-Ohio-7988, 69

N.E.3d 728, ¶ 23. Tarrier’s motion for oral argument provides no basis for ordering

oral argument under the above criteria.

{¶ 27} Accordingly, we deny the motion.

IV.CONCLUSION

{¶ 28} For these reasons, we affirm the judgment of the court of appeals and

deny the motion for oral argument.

Judgment affirmed.

O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,

and BRUNNER, JJ., concur.

_________________

Kathy L. Tarrier, pro se.

Dave Yost, Attorney General, and Samuel A. Peppers III and Mary Therese

J. Bridge, Assistant Attorneys General, for appellee.

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