[Cite as State ex rel. Sales v. Ohio Pub. Emps. Retirement Bd., 2017-Ohio-7835.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

The State ex rel. Gary N. Sales, M.D.,                  :

                 Relator,                               :

v.                                                      :                          No. 16AP-582

Ohio Public Employees Retirement Board,                 :                  (REGULAR CALENDAR)

                 Respondent.                            :


                                            D E C I S I O N

                                   Rendered on September 26, 2017


                 Gary N. Sales, pro se.

                 Michael DeWine, Attorney General, John J. Danish and
                 Mary Therese J. Bridge, for respondent Ohio Public
                 Employees Retirement Board.

                 Michael DeWine, Attorney General, and Erin E. Butcher, for
                 intervenor-respondent Ohio Department of Rehabilitation
                 and Correction.

                                    IN MANDAMUS
                     ON OBJECTIONS TO THE MAGISTRATE'S DECISION

TYACK, P.J.
        {¶ 1} Gary N. Sales, M.D., filed this action in mandamus seeking a writ to compel
the Ohio Public Employees Retirement Board ("OPERS Board") to grant him membership
status and service credit in the Ohio Public Employees Retirement System ("OPERS").
        {¶ 2} In accord with Loc.R. 13(M) of the Tenth District Court of Appeals, the case
was referred to a magistrate to conduct appropriate proceedings. The parties stipulated
the pertinent evidence and filed briefs.               The magistrate then issued a magistrate's
decision, appended hereto, which contains detailed findings of fact and conclusions of
No. 16AP-582                                                                             2


law. The magistrate's decision includes a recommendation that we deny the request for a
writ.
        {¶ 3} Dr. Sales has filed objections to the magistrate's decision. OPERS Board
has filed a memorandum in response.          The Ohio Department of Rehabilitation and
Correction ("ODRC"), which utilizes the services of Dr. Sales, has also filed a
memorandum opposing the objections filed by Dr. Sales. The case is now before the court
for a full, independent review.
        {¶ 4} Dr. Sales was providing services to ODRC as far back as 1997. OPERS
Board decided that Dr. Sales was an independent contractor with ODRC and not an
employee of ODRC. As a result, OPERS Board refused him membership in OPERS and
denied him credit with OPERS for the prior years of service.
        {¶ 5} Dr. Sales' service with ODRC was governed by four written contracts. The
contracts included a provision which includes a statement which indicates that Dr. Sales
acknowledged he was engaged in an independent business with a stipulated hourly rate of
pay. Dr. Sales was required to submit a contract payment form in order to receive
payment.
        {¶ 6} In many ways, Dr. Sales was treated the same as full-time employees of
ODRC. He worked at an ODRC facility. His schedule was controlled by employees of
ODRC. He clocked in and clocked out. He was docked six minutes worth of pay for
leaving two minutes early on one occasion.
        {¶ 7} Usually the decision about whether someone is an employee or an
independent contractor turns on the amount of control exercised over the individual
performing services. However, Ohio has enacted R.C. 145.012 which defines "[c]ontract
employee" as set forth in the magistrate's decision. Ohio Adm.Code 145-1-42(A)(2) also
must be considered, as interpreted in State ex rel. Schaengold v. Ohio Pub. Emp.
Retirement Sys., 114 Ohio St.3d 147, 2007-Ohio-3760.
        {¶ 8} This case raises the question of whether a person who works in a prison
environment, especially a psychiatrist, can be an independent contractor. Dr. Sales had to
clock in and clock out. He carried an official I.D. badge. He attended training required by
ODRC. His malpractice insurance was given to him by ODRC, which implies that he had
no control over what entity provided the coverage. His schedule was determined by
No. 16AP-582                                                                              3


ODRC nursing staff. Treatment decisions had to be in accord with ODRC policies and
guidelines.
       {¶ 9}   Clearly, ODRC wanted to consider Dr. Sales to be an independent
contractor but hold him to the control and restraints over an employee, all the while not
having to pay pension contributions or social security taxes, income tax withholding,
unemployment taxes, and workers' compensation assessments on him. If Dr. Sales had
been injured ODRC would presumably have argued that he was not a state employee, to
avoid responsibility for his medical expenses.
       {¶ 10} We sustain the objections to the magistrate's decision as to the conclusion of
law. Given the amount of control exercised over Dr. Sales, we find that he was not an
independent contractor but a part-time employee of ODRC. As a result, we grant him the
writ of mandamus as requested in his complaint.
                                                       Objections sustained; writ granted.
                                BRUNNER, J., concurs.
                             LUPER SCHUSTER, J., dissents.

LUPER SCHUSTER, J., dissenting.

       {¶ 11} I respectfully dissent. At issue is whether the OPERS Board abused its
discretion by denying Dr. Sales' request for OPERS service credit for the time he worked
as a psychiatrist at an ODRC facility. As the magistrate outlined, Ohio Adm.Code 145-1-
42(A) sets forth the factors defining both a contract employee and an independent
contractor, for the purpose of determining if an individual is a public employee.
       {¶ 12} Unlike the majority, I do not believe the control ODRC exerted over
Dr. Sales, including providing supplies and equipment, necessarily overrides and
outweighs the following factors favoring a finding that Dr. Sales was an independent
contractor and thus not a public employee: (1) Dr. Sales was a party to a contract that
outlined the benefits and responsibilities of both parties and included an acknowledgment
that Dr. Sales was engaged in an independent business; (2) ODRC paid Dr. Sales a fee for
his services, which was well-above the per hour compensation of full-time civil service
ODRC psychiatrists; (3) Dr. Sales was not eligible for workers' compensation or
unemployment compensation; (4) Dr. Sales was not eligible for fringe benefits, except for
No. 16AP-582                                                                            4


professional liability insurance covering his work at the ODRC facility; (5) Dr. Sales did
not appear on the public payroll; and (6) Dr. Sales received an IRS form 1099.
      {¶ 13} Accordingly, I would find some evidence supports the OPERS Board's
determination that Dr. Sales was not a public employee eligible for OPERS membership
because he was an independent contractor. Therefore, I would adopt the decision of the
magistrate and deny the requested writ of mandamus.
No. 16AP-582                                                                             5


                                 APPENDIX
                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

The State ex rel. Gary N. Sales, M.D.,       :

              Relator,                       :

v.                                           :                    No. 16AP-582

Ohio Public Employees Retirement Board,      :               (REGULAR CALENDAR)

              Respondent.                    :


                          MAGISTRATE'S DECISION

                                Rendered on June 27, 2017


              Gary N. Sales, pro se.

              Michael DeWine, Attorney General, John J. Danish and
              Mary Therese J. Bridge, for respondent Ohio Public
              Employees Retirement Board.

              Michael DeWine, Attorney General, and Erin E. Butcher, for
              intervenor-respondent Ohio Department of Rehabilitation
              and Correction.


                                       IN MANDAMUS

       {¶ 14} Relator, Gary N. Sales, M.D., brings this original action requesting that the
court issue a writ of mandamus ordering respondent, the Ohio Public Employees
Retirement Board ("board"), to grant his request for membership status and service credit
in the Ohio Public Employees Retirement System ("OPERS") for the duration of his
employment with intervenor-respondent, the Ohio Department of Rehabilitation and
Correction ("ODRC"), between 1997 and 2003. The board determined that relator was an
No. 16AP-582                                                                                 6


independent contractor during the period in question and denied his request for service
credit with OPERS. Relator also seeks an award of attorney fees in this action.
Findings of Fact:
       {¶ 15} 1. Relator has been licensed as a physician by the state of Ohio since 1989.
       {¶ 16} 2. Relator has been board-certified in general adult psychiatry since 1996.
       {¶ 17} 3. Relator holds a law degree and was admitted to the Ohio bar in 1980.
       {¶ 18} 4. Relator worked as a staff psychiatrist at Lorain Correctional Institution
("LCI"), an ODRC facility, between July 1, 1997 and February 13, 2003.
       {¶ 19} 5. ODRC is a public employer.
       {¶ 20} 6. The terms of relator's employment were governed by four successive
contracts signed and executed by relator and ODRC. The first two contracts each covered
a two-year period, and the final two contracts were for one year each.
       {¶ 21} 7. During relator's employment, ODRC designated him as an independent
contractor who was ineligible for OPERS credit.              OPERS accordingly did not
contemporaneously grant service credit for relator's time with ODRC.
       {¶ 22} 8. In 2013, relator filed a request, pursuant to R.C. 145.037(B)(1), asking
OPERS for a determination that he should have been classified as a public employee
during his employment at LCI, and should receive service credit.
       {¶ 23} 9. An OPERS staff determination rendered May 6, 2014, and OPERS senior
staff determination rendered October 3, 2014, successively found that relator was an
independent contractor and not entitled to OPERS credit for the period covering July 1,
1997 through June 30, 2002, some months short of the date that relator left LCI. The
discrepancy between the period addressed by the staff determinations and the period of
employment for relator at LCI arises because relator's R.C. 145.037(B)(1) request for
service credit did not specify an exact end date for the service period in question.
       {¶ 24} 10. Relator filed an appeal for review by the board, and the board assigned
a hearing officer pursuant to Ohio Adm.Code 145-1-11(C)(1).
       {¶ 25} 11. The board's hearing officer held a hearing and issued a report and
recommendation upholding the senior staff determination, and recommending that
relator was ineligible for service credit for his employment with LCI. The hearing officer's
No. 16AP-582                                                                            7


report rectified the discrepancy in employment dates to address the entire period between
July 1, 1997 and February 13, 2003.
       {¶ 26} 12. The hearing officer's report concluded that relator's conditions of
employment at LCI, when examined in light of the factors set forth in R.C. 145.012 and
Ohio Adm.Code 145-1-42 (formerly Ohio Adm.Code 145-5-15), made relator an
independent contractor who was ineligible for OPERS credit.
       {¶ 27} 13. By letter dated June 16, 2016, the board informed relator that it had
voted to accept the hearing officer's report finding that relator should not receive OPERS
credit for the contested period.
       {¶ 28} 14.   The first employment agreement executed by the parties is styled
"Personal Service Contract." (Certified Record of Proceedings ("CRP") at 80.) It has an
effective date of July 1, 1997 and end date of June 30, 1999. Under the party rubric the
contract specifies as follows: "Name of Independent Contractor[:] Gary N. Sales,
J.D., M.D." (CRP at 80.)
       {¶ 29} 15. The parties extended the initial contract for two years until June 30,
2001 through a contract renewal incorporating the terms of the initial contract.
Subsequent renewals were effected by new contracts with some minor variation from the
1997 contract.
       {¶ 30} 16. Under Article (E)(1) of the 1997 contract, "The Contractor declares that
it is engaged as an independent business." (CRP at 82.)
       {¶ 31} 17. The 1997 contract calls for an hourly rate of $106.25 for the first year
and $109.23 for the second year, specifying 832 hours per year, or 16 hours per week. The
corresponding annual compensation is given as $88,400 and $90,879.36 respectively.
       {¶ 32} 18. The 1997 contract provides that "[s]ervices are to be provided on a
schedule mutually agreed upon by the Contractor and the Department of Rehabilitation
and Correction (DRC) contact person, consistent with DRC security and staffing
concerns." (CRP at 80.)
       {¶ 33} 19. The 1997 contract calls for payment upon submission of invoices by
relator. Article (E)(8) of the contract provides that "[t]he contractor is responsible for
completing and submitting a contract payment form * * * as appropriate." (CRP at 82.)
No. 16AP-582                                                                           8


       {¶ 34} 20. Relator performed functions identical to those of the civil service
psychiatrists for ODRC.     Beyond the fundamental duties of actual assessment and
treatment of inmates, this included coordination of care with nurses, counselors, and
psychologists, and staff and committee meetings.
       {¶ 35} 21. A similarly-situated civil service psychiatrist performing the same
functions for ODRC earned approximately $100,000 per year for a 40-hour work week.
       {¶ 36} 22. Relator's patient schedule each day was set by the correctional
institution mental health clinic nurses.
       {¶ 37} 23. Relator was issued an ID card that provided institutional access and
allowed him to clock in and out as required. Under Article (D)(2) of the 1997 contract,
relator's performance would be monitored in various ways, including "timekeeping." Civil
service psychiatrists performed under identical ID card and time clock requirements.
(CRP at 81.)
       {¶ 38} 24. Relator was docked six minutes time on the one occasion in which he
clocked out two minutes early, even though he submitted a regular two-week invoice, as
required by his contract, presenting a full quota of hours worked. The six-minute penalty
corresponded to timekeeping rules for civil service employees, with time measured in
tenths of an hour.
       {¶ 39} 25. When working under the contracts, relator received no employment
benefits, did not make an OPERS retirement contribution, and contributed instead to
Social Security.
       {¶ 40} 26. Relator testified he did not know whether he was eligible for workers'
compensation or unemployment.
       {¶ 41} 27. ODRC did not consider relator eligible for workers' compensation or
unemployment compensation.
       {¶ 42} 28. During his period of employment under the contracts, relator did not
purchase his own malpractice insurance to cover his professional activity with LCI. He
was covered by an employer policy purchased by ODRC.
       {¶ 43} 29. At various times, relator attended mandatory training provided by
ODRC addressing needed skills in coping with an inmate population and insuring safety
in a prison environment.
No. 16AP-582                                                                               9


       {¶ 44} 30. Dr. Kathryn Burns, ODRC's chief psychiatrist from 1995 to 1999,
testified that a shortage of mental health professionals serving the prison system,
particularly psychiatrists, led ODRC to attract better qualified psychiatrists under a
contract basis, which allowed for a higher pay than the civil service psychiatrists received,
and offered contract psychiatrists the opportunity to maintain an outside private practice.
       {¶ 45} 31. Dr. Burns testified that the professional duties of civil service
psychiatrists and contractors were identical, and the compelling reasons for uniformity in
a penal environment:
              They didn't differ. I mean, a psychiatrist was a psychiatrist
              was a psychiatrist, and we were hiring people as contractors
              and we were hiring people in civil service positions, that was
              their choice, because we needed psychiatric work done. And
              so the day-to-day duties, who made the schedule, the
              policies, none of that differed because the job had to get done
              and get done consistently across providers, because inmates
              move through the system and we needed to have some
              consistency across the system * * *.

(May 8, 2015 Tr. at 122-23.)

       {¶ 46} 32. Dr. Burns testified that the need for more closely codified and consistent
treatment by mental health providers was due to the limited formulary appropriate for the
prison environment and the high risk of drug abuse by patients themselves, and the risk
of coercion by other inmates to obtain drugs of abuse.
       {¶ 47} 33. ODRC provided office supplies and materials for relator's work. Dr.
Burns testified that this was required because of the need to preserve security and control
potential contraband in a prison environment.
       {¶ 48} 34. Dr. Burns testified that the clock-in and clock-out requirements for
independent contractors were necessitated by the need for security personnel to keep
track of persons within the institution in case of a security problem.
       {¶ 49} 35. Relator commenced the present action by complaint filed August 15,
2016 naming the board as respondent.
       {¶ 50} 36. Relator filed his amended complaint on September 27, 2016, again
naming only the board as respondent.
No. 16AP-582                                                                           10


      {¶ 51} 37. By order dated October 11, 2016, the magistrate granted the motion of
ODRC to intervene as respondent and brief the case.
Discussion and Conclusions of Law:
      {¶ 52}       The board is vested with authority over service credit determinations:
"In all cases of doubt, the public employees retirement board shall determine under
section 145.036, 145.037, or 145.038 of the Revised Code whether any person is a public
employee, and its decision is final." R.C. 145.01(A) "The retirement board's decision on
any determination conducted pursuant to this rule shall be final and determinative."
Ohio Adm.Code 145-1-11(D).
      {¶ 53}       Mandamus is an appropriate remedy where a statutory right of appeal
does not exist to correct an abuse of discretion by an administrative body. State ex rel.
Davis v. Pub. Emps. Retirement Bd., 120 Ohio St.3d 386, 2008-Ohio-6254, ¶ 24, citing
State ex rel. Pipoly v. State Teachers Retirement Sys., 95 Ohio St.3d 327, 2002-Ohio-
2219. There is no statutory right to appeal the board's denial of service credit, and
mandamus is therefore an appropriate remedy. Id., citing State ex rel. Schaengold v.
Ohio Pub. Emp. Retirement Sys., 114 Ohio St.3d 147, 2007-Ohio-3760.
      {¶ 54}       To obtain a writ of mandamus in the present case, relator must
establish that the board abused its discretion by denying his request for OPERS service
credit. Id. at ¶ 25. "A clear legal right exists where the board abuses its discretion by
entering an order which is not supported by 'some evidence.' " Kinsey v. Bd. of Trustees
of Police & Firemen's Disability & Pension Fund of Ohio, 49 Ohio St.3d 224, 225 (1990).
The term "abuse of discretion" connotes an unreasonable, arbitrary, or unconscionable
attitude on the part of a tribunal or administrative body; no judicial or quasi-judicial
body, however, has within its discretion to commit a prejudicial error of law. State v.
Akbari, 10th Dist. No. 13AP-319, 2013-Ohio-5709, ¶ 7, citing State v. Beechler, 2d Dist.
No. 09-CA-54, 2010-Ohio-1900, ¶ 70; Pontius v. Riverside Radiology & Interventional
Assocs., Inc., 10th Dist. No. 15AP-906, 2016-Ohio-1515, ¶ 15; Hirsi v. Davis Creek Auto
Sales, 10th Dist. No. 15AP-415, 2016-Ohio-7569, ¶ 41. In common with other applications
for a writ of mandamus, relator bears the burden of providing evidence that he has a clear
legal right to be considered a public employee, that the board had a clear legal duty to
No. 16AP-582                                                                             11


declare him a public employee for the period in question. See, e.g., State ex rel. Pressley
v. Indus. Comm., 11 Ohio St.2d 141, 161 (1967).
       {¶ 55}        Prior to August 7, 2014, pursuant to R.C. 145.037(B)(1) and
145.037(D)(1), an individual in relator's position could challenge an independent
contractor designation made by an OPERS public employer regarding eligibility for
OPERS employment credit.
       {¶ 56}        R.C. 145.012 defines the term "public employee" for purposes of
eligibility for retirement benefits, and pursuant to authority granted by that statute,
OPERS promulgated Ohio Adm.Code 145-5-15(A), renumbered in 2003 as Ohio
Adm.Code 145-1-42(A), which defines the distinction between "contract employees," who
are public employees and participate in OPERS retirement, and "independent
contractors," who are not eligible for OPERS credit. The section provides as follows with
respect to the distinction between the two:
                (1) "Contract employee" means an individual who:

                (a) Is a party to a bilateral agreement which may be a written
                document, ordinance, or resolution that defines the
                compensation,        rights,     obligations,  benefits   and
                responsibilities of the individual as an employee;

                (b) Is paid earnable salary at a specific periodic rate for
                services personally performed for the public employer and
                who appears on the employer's payroll;

                (c) Is eligible for workers' compensation or unemployment
                compensation;

                (d) May be eligible for employee fringe benefits such as
                vacation or sick leave;

                (e) Is controlled or supervised by personnel of the public
                employer as to the manner of work; and

                (f) Should receive an Internal Revenue Service form W-2 for
                income tax reporting purposes.

                (2) "Independent contractor" means an individual who:
No. 16AP-582                                                                             12


              (a) Is a party to a bilateral agreement which may be a written
              document, ordinance, or resolution that defines the
              compensation,        rights,     obligations, benefits    and
              responsibilities of both parties;

              (b) Is paid a fee, retainer or other payment by contractual
              arrangement for particular services;

              (c) Is not eligible for workers'           compensation      or
              unemployment compensation;

              (d) May not be eligible for employee fringe benefits such as
              vacation or sick leave;

              (e) Does not appear on a public employer's payroll;

              (f) Is required to provide his own supplies and equipment,
              and provide and pay his assistants or replacements if
              necessary;

              (g) Is not controlled or supervised by personnel of the public
              employer as to the manner of work; and

              (h) Should receive an Internal Revenue Service form 1099
              for income tax reporting purposes.

              (3) "Personal service contract" means the same as a contract
              for an independent contractor.

       {¶ 57} Because OPERS is a creature of statute and has no authority beyond that
expressly or impliedly conferred by the legislature, Dreger v. Pub. Emps. Retirement Sys.,
34 Ohio St.3d 17, 20-21 (1987), terms for membership benefits are determined under the
statutory scheme without reference to other tests applicable in other employment
contexts. In Schaengold, the Supreme Court of Ohio analyzed the eligibility of an
independent contractor for retirement benefits, and referred only to the eight-part test set
forth in Ohio Adm.Code 145-1-42.       The magistrate declines to apply the competing
standards proposed by relator, including those arising in Ohio workers' compensation
cases and federal tax cases.
       {¶ 58} The magistrate further notes that there is scant authority on the question of
whether the Ohio Adm.Code 145-1-42(A)(2) factors are strictly conjunctive, that is,
No. 16AP-582                                                                               13


whether each and every factor must be fully met. The best guidance found on the
question is in Schaengold, in which the Supreme Court upheld the board's determination
and seems to approve of a balancing approach applied by the board:
              In so concluding, the board "determined that the factors
              weighed more heavily in concluding that the service is more
              of that of an independent contractor rather than a public
              employee, including the facts that Mr. Schaengold is not
              required to report to the court on a daily basis, he has the
              option of passing on assignments if he has scheduling
              conflicts, and represents individual clients in the Dayton
              Municipal Court on days when he is not on the bench."

Schaengold at ¶ 6.

       {¶ 59} Applying solely the statutory and regulatory standard, the magistrate
concludes in the present case that there is "some evidence" to support the board's
determination that relator was not a public employee eligible for OPERS membership
during the time he worked as a psychiatrist with ODRC because he was an independent
contractor rather than a contract employee.
       {¶ 60} It is indisputable that relator entered into four bilateral contracts with
ODRC, satisfying subsection (a) of Ohio Adm.Code 145-1-42(A)(2).              The contracts
expressly state that the hours worked were an open term agreed to by the parties. Relator
disagrees with the board's conclusion that the successive contracts were open to
negotiation, and asserts that this undermines that bilateral nature of the contract. The
hearing officer properly considered this in light of the contract language and determined
that relator had an ability to negotiate hours and pay in a manner that was not available to
civil service employees. Relator was thus able to negotiate the hours he worked, and
could elect to not enter into the initial contract, then not enter into further contracts with
ODRC. There is some evidence to support the board's conclusion on this factor.
       {¶ 61} Applying Ohio Adm.Code 145-1-42(A)(2)(b), the evidence establishes that
relator was paid a "fee, retainer or other payment by contractual arrangement." While
relator points out that his pay was on occasion docked for time as would happen with civil
service staff, the contract expressly states the independent contractor performance would
be monitored based upon, inter alia, timekeeping. Dr. Burns' testimony establishes the
No. 16AP-582                                                                             14


security concerns underlying this policy in a prison environment. There is some evidence
to support the board's conclusion on this factor.
       {¶ 62} Applying Ohio Adm.Code 145-1-42(A)(2)(c), relator testified he did not
know whether he was eligible for workers' compensation or unemployment.                The
department did not consider relator eligible for workers' compensation or unemployment
compensation. There is some evidence to support the board's conclusion on this factor.
       {¶ 63} Applying Ohio Adm.Code 145-1-42(A)(2)(d), relator received no fringe
benefits, such as vacation, sick leave, or health insurance, with the sole exception of the
professional liability insurance provided by ODRC. There is some evidence to support the
board's conclusion on this factor.
       {¶ 64} Applying Ohio Adm.Code 145-1-42(B)(2)(e), it is undisputed that relator did
not appear on ODRC's payroll for the period in question. There is some evidence to
support the board's conclusion on this factor.
       {¶ 65} Applying Ohio Adm.Code 145-1-42(A)(2)(f), relator's testimony was
unrebutted that ODRC did furnish him with supplies and equipment to use within the
institution. The hearing officer noted that, to the extent that ODRC provided necessary
materials within the prison, concerns regarding introduction of outside materials into the
prison environment explained application of such a restriction to an independent
contractor. There is some evidence to support the board's conclusion on this factor.
       {¶ 66} Applying Ohio Adm.Code 145-1-42(A)(2)(g), which the magistrate considers
the most disputable factual element heard before the board, the question is whether
relator's duties were "controlled or supervised by personnel of the public employer, as to
the manner of work."
       {¶ 67} Dr. Burns' testimony, consistently with relator's testimony, established that
relator clocked in and clocked out, carried an ID badge, submitted to required training,
and set his schedule according to appointments set by ODRC nursing staff. He attended
departmental meetings and participated in quality assurance activities, all pursuant to
contractual requirements. His treatment decisions for inmate patients were substantially
affected by ODRC policies or guidelines.
       {¶ 68} The magistrate finds that any degree of control exercised by ODRC is not
inconsistent with degree of control to be expected in a specialized institutional
No. 16AP-582                                                                            15


environment to ensure consistency of care and accommodate the special security
concerns when dealing with prison inmate patients. The hearing officer correctly noted
that the secure nature of prisons and the expressed details of relator's contracts provided
for this level of detailed organization.
       {¶ 69} Finally, applying Ohio Adm.Code 145-1-42(A)(2)(h), relator was not subject
to income tax withholding and ODRC did not pay into Social Security. Relator received
IRS form 1099's, not W-2's, for his work, and paid his self-employment tax accordingly.
There is some evidence to support the board's conclusion on this factor.
       {¶ 70} In conclusion, the magistrate finds that in the context of a specialized
institutional environment, the hearing officer's conclusions on these questions, properly
adopted by the board, were supported by some evidence. Despite some variance from the
Ohio Adm.Code 145-1-42(A)(2) factors, attributable to the necessities of prison mental
health care, the fact that relator's duties, responsibilities, and working conditions were
largely identical with his civil service colleagues is not dispositive.    The magistrate
accordingly finds there is some evidence when applying the factors under Ohio Adm.Code
145-5-15(A)(2) to conclude that the board did not abuse its discretion in finding that
relator is not entitled to OPERS membership benefits for the period in question. The
magistrate recommends this court deny the requested writ of mandamus.             Relator's
request for an award of attorney fees is denied.


                                              /S/ MAGISTRATE
                                              MARTIN L. DAVIS

                               NOTICE TO THE PARTIES

              Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign
              as error on appeal the court's adoption of any factual finding
              or legal conclusion, whether or not specifically designated as
              a finding of fact or conclusion of law under Civ.R.
              53(D)(3)(a)(ii), unless the party timely and specifically
              objects to that factual finding or legal conclusion as required
              by Civ.R. 53(D)(3)(b).
