[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Altman-Bates v. Pub. Emps. Retirement Bd., Slip Opinion No. 2016-Ohio-3100.]




                                           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. 2016-OHIO-3100
       THE STATE EX REL. ALTMAN-BATES ET AL., APPELLANTS, v. PUBLIC
               EMPLOYEES RETIREMENT BOARD ET AL., APPELLEES.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
    may be cited as State ex rel. Altman-Bates v. Pub. Emps. Retirement Bd.,
                          Slip Opinion No. 2016-Ohio-3100.]
Mandamus—Writ sought to compel Public Employees Retirement Board to grant
        relators service credit in the Public Employees Retirement System for their
        employment with the Franklin County Public Defender’s Office prior to
        January 1, 1999—Court of appeals’ judgment reversed in part and vacated
        in part; writ granted in part and cause remanded.
   (No. 2014-0650—Submitted November 17, 2015—Decided May 24, 2016.)
               APPEAL from the Court of Appeals for Franklin County,
                             No. 11AP-196, 2014-Ohio-1183.
                                    ________________
                             SUPREME COURT OF OHIO




        Per Curiam.
        {¶ 1} Appellants, Marylou Altman-Bates, Amy Neyerlin, Rebecca Steele,
and Melani Anderson, are attorneys employed by the Franklin County Public
Defender. In this mandamus action, they seek membership and service credit in the
Ohio Public Employees Retirement System (“PERS”) for their years of service
prior to January 1, 1999, and they challenge a decision of the Ohio Public
Employees Retirement Board (“the board”) denying the service credit. The Tenth
District Court of Appeals refused to grant the writ.
        {¶ 2} For the reasons explained below, we deny Neyerlin’s motion for oral
argument and grant a writ of mandamus to compel the board to award service credit
to Altman-Bates, Neyerlin, and Steele. We remand the matter to the court of
appeals for further proceedings in light of the analysis herein.
                               Summary of the issue
        {¶ 3} Persons hired by the Franklin County Public Defender on or before
December 31, 1984, are public employees entitled to PERS benefits. State ex rel.
Mallory v. Pub. Emps. Retirement Bd., 82 Ohio St.3d 235, 241, 694 N.E.2d 1356
(1998). And effective January 1, 1999, the Franklin County Public Defender’s
employees have been enrolled in and considered to be members of PERS. The
question presented is whether employees hired from January 1, 1985, through
December 31, 1998, are entitled to service credit for their years of service prior to
1999.
                                       History
        {¶ 4} Effective in January 1976, the General Assembly enacted the Ohio
Public Defender Act (R.C. Chapter 120), Am.Sub.H.B. No. 164, 136 Ohio Laws,
Part I, 1868, which authorized counties to create five-member county public-
defender commissions.       R.C. 120.13(A).       Once a county public-defender
commission was created, the commission was required to appoint an individual to




                                          2
                               January Term, 2016




the office of county public defender. Former R.C. 120.14(A)(1), 136 Ohio Laws,
Part I, at 1876.
        {¶ 5} On January 8, 1976, the Franklin County Board of Commissioners
approved a resolution creating the Franklin County Public Defender Commission
(“the commission”).     Later that year, the county commissioners approved a
resolution to enter into a six-month agreement with the newly created commission
for the representation of indigent criminal defendants.
        {¶ 6} The commission appointed James Kura to the statutory office of
Franklin County Public Defender in 1977.         Kura hired attorneys and other
employees to form the Franklin County Public Defender’s Office (“the office”).
Mallory, 82 Ohio St.3d at 236, 694 N.E.2d 1356. The office and its employees paid
Social Security taxes on wages. Id. Kura and the commission did not consider the
office to be a county agency, and therefore office employees were not treated as
“public employees” for purposes of PERS. Id.
        {¶ 7} Various state officials soon called into question the legality of the
manner in which some county public-defender offices were operating. In 1980, the
section chief of the Administrative Agencies Section of the Ohio Attorney
General’s office issued an informal opinion concluding that employees of county
public-defender offices were county employees and should be enrolled in PERS.
Mallory at 237. And based on that opinion, the state auditor informed officials in
Summit County (the only county besides Franklin County to treat such persons as
private employees) that the county’s public-defender office was operating illegally
and was not entitled to state reimbursement for its operations. Id. at 236-237.
        {¶ 8} To address these concerns, the General Assembly enacted R.C.
120.14(F) in 1984, Am.Sub.S.B. No. 271, 140 Ohio Laws, Part I, 949, 956-957,
and also made other changes to R.C. Chapter 120, including within R.C. 120.14.
The new provision, R.C. 120.14(F), allowed county public-defender commissions
to contract with nonprofit organizations to provide legal services for the indigent.




                                         3
                             SUPREME COURT OF OHIO




In late 1984, private counsel hired by the commission drafted articles of
incorporation for an entity to be called “Franklin County Public Defender” (“the
corporation”). The articles of incorporation identified the commission as the
incorporator and the sole member of the corporation, named the five then-current
members of the commission as the initial trustees, and mandated that only an
appointed commission member could serve as a trustee. On January 9, 1985, the
commission approved the articles and appointed Kura, who at that time held the
statutory office of Franklin County Public Defender, as the director of the
corporation.
                               The Mallory litigation
       {¶ 9} Diane Mallory was employed by the office as a law clerk from June
1978 until September 1980 (i.e., before the creation of the nonprofit corporation)
and then as an attorney from February 1982 to January 1994. During these times,
she and the commission paid Social Security taxes on her wages, and no PERS
contributions were made by her or on her behalf. In September 1994, she filed a
request with PERS for service credit. The PERS staff denied her claim on the
grounds that she was not a “public employee,” and the PERS board affirmed.
Mallory, 82 Ohio St.3d at 237-238, 694 N.E.2d 1356.
       {¶ 10} Holding that the board abused its discretion, we granted a writ of
mandamus.      Id. at 240.    We held that employees hired prior to the 1985
incorporation (referred to in the opinion as “pre-1984” office employees) were
public employees, because they “were employed by a county agency (the
commission) and a county officer (Franklin County Public Defender Kura) to
perform a governmental function” and because the office was created pursuant to
statutory authority. Id. at 241.
       {¶ 11} The board had argued that the office was a private entity with which
Kura had contracted for services and thus that Mallory was not a public employee.
We rejected that argument for two reasons. First, there was no evidence before us




                                         4
                                January Term, 2016




of a written or oral contract between Kura and the office. Id. at 242. And second,
if such a contract existed, it would have been invalid under R.C. 2921.42(A)(4),
which prohibits a public official from having an interest in the profits or benefits of
a public contract entered into by the public entity with which the official is
connected. In reversing the judgment of the court of appeals, we stated:


       In concluding that Kura had contracted with a private organization
       known as the [Franklin County Public Defender’s Office], the court
       of appeals neglected to consider that a clear conflict of interest
       would have existed if Kura, acting in his official capacity as the
       Franklin County Public Defender, was permitted to determine the
       adequacy of services provided to the county by the “private agency”
       Kura himself directed.


Mallory at 242.
       {¶ 12} Finally, we held that Mallory was entitled under R.C. 145.01(A)(2)
to continue her PERS membership after the incorporation following the 1984
amendments to R.C. 120.14. Id. at 245. Mallory and others in her situation are
sometimes referred to as “carryover employees.” However, we were not called
upon in Mallory to address the status of employees hired for the first time after the
corporation was formed pursuant to the 1984 amendments to R.C. 120.14.
       {¶ 13} In the wake of Mallory, the “Franklin County Public Defender” was
declared a county agency, effective January 1, 1999. The date of hire of all
employees hired after December 31, 1984, and working at that time was changed
to January 1, 1999. And from that point forward, all employees were enrolled in
PERS. Therefore, only those employees hired from January 1, 1985, through
December 31, 1998, have been excluded from consideration as public employees,




                                          5
                             SUPREME COURT OF OHIO




and hence not covered by PERS, at least for the period of their service before
January 1, 1999.
                               The current litigation
       {¶ 14} In February 2001, 51 current and former employees filed for PERS
membership and service credit for their employment prior to 1999. In September
2003, PERS staff rejected the claims based on the assumption that this court had
already ruled that post-1984 hires were not eligible for PERS coverage prior to
January 1, 1999, in State ex rel. Van Dyke v. Pub. Emps. Retirement Bd., 99 Ohio
St.3d 430, 2003-Ohio-4123, 793 N.E.2d 438. After an administrative hearing, the
hearing examiner also concluded that the claimants were collaterally estopped from
challenging the private status of the nonprofit corporation by virtue of Van Dyke.
On that basis, the board denied the claims.
       {¶ 15} The claimants then filed an action for a writ of mandamus in the
Tenth District Court of Appeals, and that court granted a limited writ and directed
the board to issue a new order adjudicating the claims on their merits. This court
affirmed, holding that collateral estoppel did not apply. State ex rel. Davis v. Pub.
Emps. Retirement Bd., 120 Ohio St.3d 386, 2008-Ohio-6254, 899 N.E.2d 975, ¶ 36.
In Davis, we noted that the only issue in Van Dyke had been whether the sole
employee bringing that case, who had worked as a staff attorney during two
separate time periods, was eligible for PERS service credit during the second time
period as a carryover employee. Davis at ¶ 6-9, 43. We stated in Davis that “we
did not actually decide [the office’s] postincorporation status in either Van Dyke or
Mallory.” Davis at ¶ 36.
       {¶ 16} Proceedings resumed before the board, and the claimants presented
additional evidence. A hearing examiner issued a report and recommendation to
the board concluding that during the relevant time period, the claimants were
employed by a nonprofit corporation, not by a public employer. The hearing




                                         6
                                January Term, 2016




examiner recommended to the board that it should deny the claims for PERS
coverage.
       {¶ 17} On March 17, 2010, the board voted to accept the report’s findings
of fact and conclusions of law. The board declared that


       the Franklin County Public Defender was a non-profit corporation
       that employed Claimants to provide public defender services and
       was not a public employer for OPERS purposes, and therefore
       Claimants are not public employees for the time period December
       31, 1984 to January 1, 1999.


       {¶ 18} Altman-Bates, Neyerlin, and Steele filed a mandamus action in the
Tenth District Court of Appeals.       The court of appeals’ magistrate granted
Anderson leave to intervene as an additional relator. On April 30, 2013, the
magistrate issued a decision concluding that the board did not abuse its discretion
when it denied the claims for coverage and recommending that the writ be denied.
The court of appeals overruled objections, adopted the magistrate’s findings of fact
and conclusions of law, and denied the writ. The four claimants timely appealed.
                             Motion for oral argument
       {¶ 19} Oral argument in a direct appeal is discretionary. S.Ct.Prac.R.
17.02(A). In exercising this discretion, we consider whether the case involves a
matter of great public importance, complex issues of law or fact, a substantial
constitutional issue, or a conflict among the courts of appeals. State ex rel. Manley
v. Walsh, 142 Ohio St.3d 384, 2014-Ohio-4563, 31 N.E.3d 608, ¶ 16.
Notwithstanding the long procedural history recited above, we conclude that oral
argument is unnecessary, and we deny the motion.




                                         7
                              SUPREME COURT OF OHIO




                       Governing law and standard of review
        {¶ 20} Membership in PERS is compulsory for every “public employee,”
except for those employees who come under a few statutory exclusions that are
inapplicable here. R.C. 145.03(A); 145.01(B); State ex rel. Lucas Cty. Bd. of
Mental Retardation & Dev. Disabilities v. Pub. Emps. Retirement Bd., 123 Ohio
St.3d 146, 2009-Ohio-4694, 914 N.E.2d 1038, ¶ 18. The definition of “public
employee” includes “[a]ny person who is an employee of a public employer.” R.C.
145.01(A)(3). The definition of “public employer” includes any county, as well as
boards, commissions, and administrative bodies created by state law or by a county.
R.C. 145.01(D).
        {¶ 21} A decision of the board whether any person is a “public employee”
is final. R.C. 145.01(A). Because there is no statutory right to appeal a decision of
the board on this question, mandamus is the appropriate remedy. State ex rel.
Cydrus v. Ohio Pub. Emps. Retirement Sys., 127 Ohio St.3d 257, 2010-Ohio-5770,
938 N.E.2d 1028, ¶ 13.
        {¶ 22} To show they are entitled to a writ of mandamus, appellants must
establish that the board abused its discretion. State ex rel. Domhoff v. Ohio Pub.
Emps. Retirement Sys. Bd., 140 Ohio St.3d 284, 2014-Ohio-3688, 17 N.E.3d 569,
¶ 14. An abuse of discretion occurs when a decision is unreasonable, arbitrary, or
unconscionable. State ex rel. Shisler v. Ohio Pub. Emps. Retirement Sys., 122 Ohio
St.3d 148, 2009-Ohio-2522, 909 N.E.2d 610, ¶ 11. The board has not abused its
discretion if there is “some evidence” to support its determination. State ex rel.
Nese v. State Teachers Retirement Bd. of Ohio, 136 Ohio St.3d 103, 2013-Ohio-
1777, 991 N.E.2d 218, ¶ 26-27; State ex rel. Schaengold v. Ohio Pub. Emps.
Retirement Sys., 114 Ohio St.3d 147, 2007-Ohio-3760, 870 N.E.2d 719, ¶ 19.
        {¶ 23} At this stage in the proceedings, our task is to review the decision of
the court of appeals to determine if it abused its discretion in denying the writ. State




                                           8
                                     January Term, 2016




ex rel. Mun. Constr. Equip. Operators’ Labor Council v. Cleveland, 141 Ohio St.3d
113, 2014-Ohio-4364, 22 N.E.3d 1040, ¶ 24.
                                        Legal analysis
         {¶ 24} In Mallory, the case in which we considered the status of the “pre-
1984” employees, the record contained no contracts between the holder of the
statutory office, Kura, and the office itself. 82 Ohio St.3d at 242, 694 N.E.2d 1356.
By contrast, after the 1984 changes to R.C. 120.14 and the subsequent formation of
the corporation, the statutory office and the corporation did execute formal written
agreements. This fact alone, however, is not dispositive. In Mallory, this court
held that it would have been a violation of R.C. 2921.42 for Kura, the appointed
officeholder, to contract for services with a private agency of which he was also the
director.    Id.   According to appellants, the same problem persisted after the
formation of the corporation, because Kura never resigned his statutory office. To
the board, on the other hand, these contracts are critical evidence that there was a
formal distinction between the statutory office and the corporation.
         {¶ 25} The record contains two relevant contracts, both dated May 13,
1987. Under the first contract, the corporation agreed to assume the commission’s
responsibilities for providing county public-defender services. The second contract
was a subcontracting agreement for the corporation to provide public-defender
services pursuant to a contract the commission had previously entered into with the
city of Columbus. Both agreements were signed by H. Ritchey Hollenbaugh, as
chairman of the commission, and by Kura, as “Director” of “Franklin County
Public Defender.”1 The dispositive question is, what position did Kura hold at the
time?2


1
  Another contract in the record, dated March 14, 1985, a subcontracting agreement for the
corporation to fulfill obligations the commission had agreed to undertake for the city of Columbus,
could potentially be relevant, but it is unsigned.
2
  The board contends that a number of appellants’ arguments, which would include the argument
raising the question of Kura’s status, were not timely raised and have therefore been waived.




                                                9
                                  SUPREME COURT OF OHIO




         {¶ 26} Kura was appointed to the statutory office of Franklin County Public
Defender in 1977. At the time of his appointment, if a county chose to create a
county public-defender commission, then that commission had a statutory duty to
appoint a county public defender (an officeholder), who could be removed from
office only for good cause. Former R.C. 120.14(A), Am.Sub.H.B. No. 164, 136
Ohio Laws, Part I, 1876.
         {¶ 27} R.C. 120.14(F) was enacted in 1984 to allow counties to contract for
public-defender services with private entities. At that time, R.C. 120.14(A) was
amended to state:


                  (1) Except as provided in division (A)(2) of this section, the
         county public defender commission shall appoint the county public
         defender and may remove him from office only for good cause.
                  (2) If a county public defender commission contracts * * *
         with one or more nonprofit organizations for * * * the organizations
         to provide all of the services that the county public defender is
         required or permitted to provide by this chapter, the commission
         shall not appoint a county public defender.


Am.Sub.S.B. No. 271, 140 Ohio Laws, Part I, 955. As Anderson and Steele
correctly point out in their brief, the statute continued to provide (as it does today)
that the commission could remove the appointed statutory official only for good
cause.




However, both the court of appeals’ magistrate and the Tenth District considered the question of
Kura’s status on its merits, see 2014-Ohio-1183, at ¶ 62-63, 116, 120, rejecting by implication the
board’s waiver contention as it pertains to this argument. We hold that it was not an abuse of
discretion to consider Kura’s status.




                                                10
                                    January Term, 2016




        {¶ 28} The board concedes that “there is no formal resolution by the
[commission] (at least in the record) dissolving the office of the Franklin County
Public Defender.” Nor is there any evidence or allegation that Kura resigned the
office in 1985 or was ever removed for cause prior to the end of his tenure.
        {¶ 29} Instead, the evidence shows that Kura held two positions
simultaneously. On March 14, 1984, prior to the creation of the corporation, the
members of the commission reappointed Kura to a four-year term as the statutory
Franklin County Public Defender. Ten months later, the trustees of the newly
created corporation discussed appointing Kura to serve as the corporation’s
director. A motion was made and seconded to extend to Kura a contract for a period
of four years. According to the minutes of the meeting:


        Jerry [Simmons] asked if Jim [Kura] was just appointed to a four
        year term not * * * long ago. It was then suggested to ratify the
        existing term of four years.             It was then moved by Ritch
        [Hollenbaugh] that the board of trustees ratify the existing four year
        contract, subject with right to remove with cause.


The motion passed unanimously, and Kura accepted the terms. Gerald Simmons,
who at the time served as chairperson of the commission and a trustee of the
corporation, later attested that “[w]e reaffirmed James Kura’s appointment as
Franklin County Public Defender at the same time that we approved the
establishment of the nonprofit corporation.”3
        {¶ 30} Based on this evidence, we hold that the court of appeals abused its
discretion for two reasons. First, the court of appeals based its ruling on the
assumption that “there was no person holding the office of Franklin County Public

3
 There likewise is no evidence or allegation that Kura resigned the statutory office when he was
appointed to another four-year term in 1988.




                                              11
                                   SUPREME COURT OF OHIO




Defender between 1985 and 1999. Rather, that person was appointed as the
‘Director’ of the [corporation].” 2014-Ohio-1183, at ¶ 62. The court’s assumption
is not supported by the record. Second, the court of appeals made an error of law
by disregarding the plain language in R.C. 120.14(A)(1) that the commission may
remove an appointed public defender only for good cause.
         {¶ 31} Because Kura was a county official at the same time he was director
of the corporation, the employees of that corporation who were hired while he held
the statutory office were employed by a public official, and hence, they were public
employees. See Mallory, 82 Ohio St.3d at 241, 694 N.E.2d 1356. Kura resigned
his position in October 1992. The record shows that three of the appellants in this
case were hired during his tenure. Altman-Bates was hired in July 1992. Neyerlin
was employed from June 1987 to October 1989, and she was rehired in August
1990. Steele started as a law clerk in 1989 and became an attorney in 1990.4
Accordingly, these three appellants are entitled to PERS service credit for their
service prior to January 1, 1999, and we reverse the judgment of the court of appeals
and grant the writ as to these appellants.
         {¶ 32} Anderson intervened in this case as an additional relator at the court
of appeals, and her date of hire is not in the record before us. It is possible that she
was hired during the tenure of one of Kura’s successors, and there is almost no
evidence in the record regarding those successors’ appointments. We therefore
vacate the judgment of the court of appeals and remand the matter to the court of
appeals for further proceedings as to her. We decline to consider at this time the
other legal theories presented by appellants, including the claims that the
corporation was the alter ego of, or was controlled by, the commission.




4
  The hearing examiner’s report gives a slightly different date for Steele’s hire, but the discrepancy
is not material here.




                                                 12
                                January Term, 2016




                                    Conclusion
        {¶ 33} The judgment of the Tenth District Court of Appeals is hereby
reversed in part and vacated in part, a writ of mandamus is granted to compel the
board to award service credit to Altman-Bates, Neyerlin, and Steele, and the cause
is remanded to the court of appeals for further proceedings as to Anderson.
                                                            Judgment accordingly.
        O’CONNOR, C.J., and PFEIFER, KEOUGH, and O’NEILL, JJ., concur.
        O’DONNELL, J., dissents with an opinion that LANZINGER and KENNEDY,
JJ., join.
        KATHLEEN ANN KEOUGH, J., of the Eighth Appellate District, sitting for
FRENCH, J.
                               _________________
        O’DONNELL, J., dissenting.
        {¶ 34} Respectfully, I dissent.
        {¶ 35} In this case, four relators, Marylou Altman-Bates, Amy Neyerlin,
Rebecca Steele, and Melani Anderson, appeal from a judgment of the Tenth District
Court of Appeals which denied a writ of mandamus to compel the Public
Employees Retirement Board to grant them service credit in the Public Employees
Retirement System (“PERS”) for the years 1985 to 1998. The court of appeals
concluded that some evidence supported the board’s decision that they were not
public employees during their tenure with the Franklin County Public Defender’s
Office while it was organized as a private, nonprofit corporation.
        {¶ 36} Our court is asked to determine whether the court of appeals abused
its discretion when it concluded that the board did not abuse its discretion in
denying a service credit to relators. See State ex rel. Nese v. State Teachers
Retirement Bd. of Ohio, 136 Ohio St.3d 103, 2013-Ohio-1777, 991 N.E.2d 218,
¶ 55; State ex rel. Schaengold v. Ohio Pub. Emps. Retirement Sys., 114 Ohio St.3d
147, 2007-Ohio-3760, 870 N.E.2d 719, ¶ 19.




                                          13
                             SUPREME COURT OF OHIO




       {¶ 37} The parties seeking a writ of mandamus have the burden “to
‘ “demonstrate that there is plain, clear, and convincing evidence which would
require the granting of the writ.” ’ ” State ex rel. Doner v. Zody, 130 Ohio St.3d
446, 2011-Ohio-6117, 958 N.E.2d 1235, ¶ 55, quoting State ex rel. Henslee v.
Newman, 30 Ohio St.2d 324, 325, 285 N.E.2d 54 (1972), quoting the court of
appeals’ opinion in that case. Clear and convincing evidence “is that measure or
degree of proof which will produce in the mind of the trier of facts a firm belief or
conviction as to the allegations sought to be established.” Cross v. Ledford, 161
Ohio St. 469, 477, 120 N.E.2d 118 (1954).
       {¶ 38} Thus, mandamus will not lie as long as the board’s decision is
supported by at least “some evidence.” State ex rel. Domhoff v. Ohio Pub. Emps.
Retirement Sys. Bd., 140 Ohio St.3d 284, 2014-Ohio-3688, 17 N.E.3d 569, ¶ 14;
Schaengold at ¶ 19.
       {¶ 39} The record reveals that the Franklin County Public Defender
Commission appointed James Kura to the office of Franklin County Public
Defender in 1977. From its inception, the public defender’s office operated as a
nongovernmental organization. As Kura explained,


       The decision to be non-county employees was made by the Board
       of County Commissioners and the Franklin County Public Defender
       Commission when our office split off from the Legal Aid Society of
       Columbus * * *.        It was felt, as adversaries to the County
       Prosecutor’s [Office], we should not be a part of the county
       government.


The commission and Kura therefore treated the Franklin County Public Defender’s
Office as a private entity, and its employees did not participate in PERS but rather
participated in and made contributions to the Social Security system. State ex rel.




                                         14
                                 January Term, 2016




Mallory v. Pub. Emps. Retirement Bd., 82 Ohio St.3d 235, 236, 694 N.E.2d 1356
(1998).
          {¶ 40} Apparently, based on an informal opinion issued by a section chief
of the attorney general’s office, the state auditor determined that county public
defender commissions lacked statutory authority to contract with nonprofit
organizations because employees of county public defender offices were county
employees. Id. at 236-237. Kura and the commission then sought new legislation
from the General Assembly permitting nonprofit organizations to provide
representation to indigent criminal defendants. Id. at 237. In the meantime, the
minutes from a January 15, 1981 meeting of the Franklin County Public Defender
Commission reveal that Kura had stated that he understood that if the office would


          remain non-county we would probably be under the appointed
          counsel system section of the law. * * * Further, as non-county the
          public defender commissioners would lose their commission status,
          that he (Jim [Kura]) would have to resign as the public defender and
          become, if appointed by the commissioners, as the director; that the
          Franklin County Public Defender Commission as it now is would
          become a Board of Directors for the organization.


Kura continued to treat the public defenders as private employees, relying on the
belief that a “new amendment to R.C. Chapter 120 would include a provision
retroactively legalizing the [public defender’s office] operation as a private entity.”
Mallory at 237.
          {¶ 41} In 1984, the General Assembly enacted the legislation Kura sought,
specifically permitting county public defender commissions to contract with
nonprofit organizations to provide indigent defense. R.C. 120.14(F), Am.Sub.S.B.




                                          15
                             SUPREME COURT OF OHIO




No. 271, 140 Ohio Laws, Part I, 949, 956-957. However, the General Assembly
did not make the statute retroactive.
       {¶ 42} Pursuant to the newly enacted statute, the Franklin County Public
Defender Commission incorporated the Franklin County Public Defender as a
nonprofit corporation in January 1985, and the code of regulations governing the
nonprofit provided for the corporation’s trustees to elect a “President (also known
as the Director).”    The minutes of the meeting where these changes were
accomplished reflect that “as of January 9, 1985, the office of the Franklin County
Public Defender became officially a non-profit corporation” and that the trustees
had designated “James Kura, President (Director).” (Emphasis added.) Thus, it is
manifest that the commission, with Kura’s agreement, replaced the public office of
the county public defender with a private, nonprofit corporation.
       {¶ 43} The majority, however, relies on these same meeting minutes as
proving that Kura served in dual capacities as both the county public defender and
as director of the nonprofit corporation, explaining that in its view, the board of
trustees ratified and extended Kura’s term as public defender rather than dissolving
that office or terminating his position for good cause. Regrettably, the majority
misreads the record, because the trustees were explicitly discussing Kura’s “term
as director”—not as public defender—and the minutes reveal that the “Board of
Trustees approved unanimously this motion [to ratify Kura’s existing contract]
which was accepted by Jim [Kura].” (Emphasis added.)
       {¶ 44} Significantly, the board of trustees lacked statutory authority to
appoint Kura to the office of county public defender, because R.C. 120.14(A)(1)
grants that power only to the county public defender commission. Further, both
Kura and the trustees were aware that R.C. 120.14(A)(2) prohibited the public
defender commission from contracting with a nonprofit organization to provide the
services of the public defender at the same time that there was an appointed county
public defender.




                                        16
                                January Term, 2016




       {¶ 45} The only reasonable reading of this evidence is that the office of the
county public defender had been dissolved with Kura’s agreement when he
accepted the position of director of the nonprofit corporation, because the purpose
of establishing a nonprofit corporation was to ensure that the office of the public
defender was not a county agency and that its employees were not county
employees. It is both material and relevant that the nonprofit corporation continued
to treat its employees as private employees, making contributions to the Social
Security system and to SEP-IRA accounts rather than to PERS—and a letter to
Kura dated March 27, 1987, indicates that public defenders received contributions
to SEP-IRA accounts to ensure that their combined employer contributions to the
Social Security system and the SEP-IRA accounts would more nearly equal the
employer contributions made to PERS for county prosecutors.
       {¶ 46} And while the commission’s minutes had previously referred to
Kura as “Public Defender,” after the incorporation of the nonprofit he was
identified in subsequent meeting minutes and in correspondence only as “Director.”
Tellingly, the minutes of a meeting held before Kura’s term ended in 1988 state
that he was “reappointed as director of the office of the Franklin County Public
Defender.” (Emphasis added.) And according to a letter in the record written by
Judith M. Stevenson, who later held that position, it was only when the Franklin
County Public Defender “changed from a Not-For-Profit corporation to a County
office as of January 1, 1999,” that the director’s title changed back to “Franklin
County Public Defender.”
       {¶ 47} It is true, as the majority states, that there is no formal resolution in
the record dissolving the office of the Franklin County Public Defender, nor does
the record contain Kura’s formal resignation or removal for cause. But the majority
overemphasizes the importance of these facts and misapplies the standard of
review. The Public Employees Retirement Board has no burden of proof in this
court. The relators have the burden of proof and cannot rely on an absence of




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evidence in the record to sustain their burden to affirmatively demonstrate that they
were public employees entitled to participate in PERS. And not only does this
record lack clear and convincing evidence that Kura held the office of county public
defender while simultaneously serving as the director of the nonprofit corporation,
but such a conclusion also runs contrary to R.C. 120.14(A)(2), which prohibited the
commission from contracting with a nonprofit organization while there was an
appointed county public defender. We should not presume that there was such a
willing violation of the law, and there is at least some evidence that Kura and the
county public defender commission replaced the office of the county public
defender with a nonprofit corporation and that the relators, who did not contribute
any funds to PERS during this time period, were not public employees.
       {¶ 48} Thus, in my view, the court of appeals did not abuse its discretion in
upholding the finding that employees of the Franklin County Public Defender’s
Office were not public employees from 1985 to 1998—the evidence shows they
participated as private employees in the Social Security system and even received
employer contributions to SEP-IRA accounts. The majority opinion pretends to
retroactively change history by erroneously concluding that relators were public
employees during that time. They were not. Accordingly, I would affirm the
judgment of the court of appeals in this case.
       LANZINGER and KENNEDY, JJ., concur in the foregoing opinion.
                                 _________________
       John H. Bates, for appellant Marylou Altman-Bates.
       Amy Neyerlin, pro se.
       Rebecca Steele, pro se.
       Melani Anderson, pro se.
       Michael DeWine, Attorney General, and John J. Danish, Assistant Attorney
General, for appellee Ohio Public Employees Retirement Board.




                                         18
                             January Term, 2016




       Ron O’Brien, Franklin County Prosecuting Attorney, Nick A. Soulas Jr.,
First Assistant Prosecuting Attorney, and Denise DePalma, Assistant Prosecuting
Attorney, for appellee Franklin County Board of Commissioners.
                             _________________




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