The opinion
Stern, J.,
dissenting. The thrust of In re Termination of Employment (1974), 40 Ohio St. 2d 107 , was that deputy sheriffs are presumed to be in the classified service unless they perform administrative duties. See State, ex rel. Emmons, v. Lutz (1936), 131 Ohio St. 466 , 3 N. E. 2d 502 . In the instant ease, the jurisdiction of the State Personnel Board of Review was not attacked, either before the board or upon appeal, on the ground that the deputies’ duties made them fiduciaries, except in the sense that deputies are by the nature of their employment fiduciaries: it was stipulated by the parties that they were not administrators.
To determine whether the board had jurisdiction, it, had to make a finding of fact as to the actual duties performed by the deputies; but no claim was made that the deputies performed anything other than the usual duties of these officeholders. This entire case was argued on that basis.
Thus, it seems that the sheriff has waived his chance to raise that issue of fact in this proceeding.
The board did apply essentially the test mandated by this court, in finding that the deputies were, in fact, in the classified service; based upon that finding it issued a final order directing their reinstatement. This court affirmed that decision and, therefore, affirmed that order.
The only claim raised by the appellant herein is based upon an issue of fact, which could have been raised at th» initial hearing before the board but was not. I do not find in the record sufficient grounds to reversé the order and judgment.