[Cite as Parrett v. Admr., Unemp. Comp. Rev. Comm., 2017-Ohio-2778.]


                       IN THE COURT OF APPEALS OF OHIO
                          FOURTH APPELLATE DISTRICT
                              PICKAWAY COUNTY

BRADLEY E. PARRETT,             :   Case No. 16CA15
                                :
     Plaintiff-Appellee,        :
                                :
     vs.                        :
                                :   DECISION AND JUDGMENT
ADMINISTRATOR,                  :   ENTRY
UNEMPLOYMENT                    :
COMPENSATION REVIEW             :
COMM’N,                         :
                                :
     Defendant-Appellant.       :   Released: 05/08/17
_____________________________________________________________
                          APPEARANCES:

Michael DeWine, Ohio Attorney General, and David E. Lefton, Principal
Assistant Ohio Attorney General, Columbus, Ohio, for Appellant, Director,
Ohio Department of Job and Family Services.

Mark Landes, Isaac, Wiles, Burkholder & Teetor, LLC, Columbus, Ohio, for
Appellant Pickaway County Educational Service Center.1

Bradley E. Parrett, Circleville, Ohio, Pro Se Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} Appellant, Director, Ohio Department of Job and Family

Services, appeals the Pickaway County Court of Common Pleas' decision

reversing the Unemployment Compensation Review Commission's decision


1
 Pickaway County Educational Service Center has not filed a brief on appeal in this matter and is not
otherwise participating.
Pickaway App. No. 16CA15                                                      2

disallowing unemployment compensation benefits to Appellee, Bradley E.

Parrett, based upon its determination that Appellee was discharged for just

cause by Appellant, Pickaway County Educational Service Center. On

appeal, Appellant contends that the trial court erred in reversing the decision

of the Unemployment Compensation Review Commission, as its decision

that Appellee was separated from his employment under disqualifying

conditions was not unlawful, unreasonable, or against the manifest weight of

the evidence.

      {¶2} Because the decision of the Unemployment Compensation

Review Commission was not unlawful, unreasonable or against the manifest

weight of the evidence, the trial court erred in reversing the decision.

Accordingly, the decision of the trial court is reversed.

                                    FACTS

      {¶3} Appellee, Bradley E. Parrett, began working as a resource

officer for the Pickaway County Educational Service Center in August of

2011. His contract for employment for that position provided, among other

things, that he "maintain a cooperative working relationship with the Ross

County Sheriff Department[]" and that he "[b]e a commissioned law

enforcement officer by the state of Ohio." (Emphasis added). At the time

Appellee became employed with the Pickaway County Educational Service
Pickaway App. No. 16CA15                                                        3

Center, he was a commissioned deputy sheriff by the Ross County Sheriff's

Office. However, after a complaint was made to the Sheriff's Office by a

private citizen regarding Appellee in his capacity as a deputy, the Ross

County Sheriff made the decision to revoke Appellee's commission in

November of 2014. When the school was made aware that Appellee had

lost his commissioned status, the school superintendent informed Appellee

he must either resign his position or he would be discharged. Appellee

submitted a resignation letter on December 12, 2014, stating that his

resignation was "due to the fact that I am no longer affiliated with the Ross

County Sheriff's Office."

      {¶4} Appellee made application for unemployment compensation

benefits on December 12, 2014. The record reflects that Appellee's

employer did not challenge the payment of unemployment benefits to

Appellee. The Director's file contains a Determination of Unemployment

Compensation Benefits dated January 14, 2015, which disallowed benefits

due to "a disqualifying separation from employment[,]" and because

Appellee was "discharged with just cause." The determination stated "[t]he

employer discharged the claimant for not providing and maintaining the

license, permit or insurability required to perform the work[,]" and that

"[f]acts establish that the claimant was made aware at the time of hire that
Pickaway App. No. 16CA15                                                          4

he/she was responsible for maintaining the license, permit, or insurability."

      {¶5} Appellant appealed the determination and filed a letter

explaining that:

      "As of November 2014 there was a complaint filed against me
      at the sheriff's office, The sheriff decided to pull my
      commission before all the facts were presented. With him
      pulling my commission I no longer had any deputy authority
      this means I could not arrest, pat down, detain or act in any way
      as an officer. With my employment working as a resource
      officer at the school it is in my contract the I must be a
      commissioned officer. At no time did I surrender/forfeit/resign
      or quit, giving up my commission at the sheriff's office. The
      sheriff pulled my commission and in return I did not meet the
      requirements of the contract at the school. The school in return
      laid me off giving me the opportunity to draw unemployment
      till all the facets could be worked out and my commission
      reinstated which would in return reinstate job with the school."

On February 11, 2015, a Notice of Redetermination of an Initial Application

of Unemployment Benefits was filed, again disallowing Appellee's

application for unemployment benefits due to "a disqualifying separation

from employment[,]" but stating "the claimant quit without just cause."

      {¶6} Appellee again appealed, making the same argument contained

in his first appeal. On February 18, 2015, the matter was transferred to the

Unemployment Compensation Review Commission. Thereafter, a telephone

hearing was held on March 5, 2015. The Pickaway County Educational

Service Center filed a notice prior to the hearing stating that it would not be

participating in the hearing and that it was not contesting Appellee's
Pickaway App. No. 16CA15                                                        5

application for benefits. Appellee participated in the hearing and was

permitted to testify. At this stage, however, Appellee testified that he was

not aware he was required to be affiliated with the Ross County Sheriff's

Office, but rather he understood he only had to be a "certified police

officer." When asked whether his position as resource officer required him

to be a "commissioned officer," Appellee testified that his contract only

required that he be a "certified police officer," not that he had to be a

"commissioned officer." He testified that he was still currently a "certified

police officer." He claimed that any requirement that he be commissioned

was a change in the job requirements.

      {¶7} The decision of the Unemployment Compensation Review

Commission was filed on March 5, 2015. The Review Commission findings

of fact included findings that 1) Appellee's position required that he be

commissioned by the Ross County Sheriff's Office; 2) his commission was

revoked on November 25, 2014; 3) the commission was revoked due to a

complaint received by the Sheriff's Office; 4) once his commission was

revoked he could no longer perform essential contract obligations of the

position; 5) he was given the option of being discharged or resigning on

December 12, 2014; 6) Appellee offered a letter of resignation in lieu of

discharge; and 7) the employer was the moving party in the separation. The
Pickaway App. No. 16CA15                                                        6

Review Commission's stated reasoning was that the employer acted

reasonably in discharging Appellee because he was unable to meet a

condition of continued employment, as his commission had been revoked by

the Ross County Sheriff's Office. The Review Commission further reasoned

that "[w]ithout the commission he was not able to perform the essential

functions of the position as he could no longer arrest, perform searches, and

complete other essential resource functions." As such, the Review

Commission reasoned that Appellee was discharged with just cause. The

decision of the Review Commission ultimately affirmed the redetermination

findings that disallowed Appellee's claim because he was separated from

employment under disqualifying conditions, however, it modified the

redetermination finding that Appellee "quit" his employment. The Review

Commission modified that decision to instead find that Appellee was

discharged with just cause.

      {¶8} By letter dated March 23, 2015, Appellee requested the March

5, 2015 decision be reviewed, arguing that a requirement that he be

commissioned by Ross County was a change in his contract and that he was

unaware, when he was hired, that he had to be commissioned by Ross

County Sheriff's Office. In support of his request for review, Appellee

attached documents purporting to be copies of the contract presented to him
Pickaway App. No. 16CA15                                                        7

upon hire, as well as a new, revised contract that was created after he was

discharged, that would govern the terms of employment for the resource

officer position going forward. Appellant argued that because the new

contract contained different requirements from his original contract, the

terms of employment had changed. There is no indication from the record,

however, that the contract language changed before Appellee was

discharged from his position. Thereafter, an Unemployment Compensation

Review Commission Decision Disallowing Request for Review was filed on

April 15, 2015, disallowing Appellee's claim once again, based upon a

review of the entire record, and informing Appellee of his right to appeal the

matter to the court of common pleas.

      {¶9} Appellee subsequently filed a pro se appeal in the Pickaway

County Court of Common Pleas. At this stage, both the Director of the Ohio

Department of Job and Family Services and the Pickaway Educational

Service Center filed motions to dismiss the appeal. Appellee filed a brief in

support of his appeal that contained little argument, but instead appeared to

be a compilation of documents contained in the Director's file, as well as

several letters addressed "to whom it may concern," that are not part of the

official record below. Appellants' position during that appeal was that

Appellee's employment was expressly conditioned upon him maintaining a
Pickaway App. No. 16CA15                                                        8

license or certification (in this case a commission), and that his failure to

comply with the condition was just cause for termination. Appellants urged

the trial court to affirm the decision of the Review Commission, as it was

lawful, reasonable, and not against the manifest weight of the evidence.

      {¶10} On September 28, 2016, the trial court issued its decision and

entry reversing the decision of the Review Commission. In its decision, the

trial court found that the record supported Appellee's contention that the

requirement that he be affiliated with the Ross County Sheriff's Office was a

new requirement, that Appellee had not initially agreed that he must be

affiliated with the Ross County Sheriff and that as such, Appellee was not

terminated from his position with just cause. The trial court further reasoned

Appellee had only agreed that he had to be a "certified peace officer." The

trial court further reasoned that there was no conflicting evidence that the

requirements of Appellee's position had changed, and that the manifest

weight of the evidence leads to the conclusion that Appellee was discharged

without just cause. Thus, the trial court reversed the decision of the Review

Commission, finding that that the decision was unlawful, unreasonable and

against the manifest weight of the evidence.
Pickaway App. No. 16CA15                                                           9

      {¶11} It is from this decision issued by the trial court that Appellant,

Director, Ohio Department of Job and Family Services filed its timely

appeal to this Court, setting forth one assignment of error for review.

                         ASSIGNMENT OF ERROR

“I.   THE PICKAWAY COUNTY COURT OF COMMON PLEAS
      ERRED IN REVERSING THE DECISION OF THE
      UNEMPLOYMENT COMPENSATION REVIEW COMMISSION,
      AS ITS DECISION THAT THE APPELLEE BRADLEY PARRETT
      ("MR. PARRETT") WAS SEPARATED FROM HIS
      EMPLOYMENT UNDER DISQUALIFYING CONDITIONS WAS
      NOT UNLAWFUL, UNREASONABLE, OR AGAINST THE
      MANIFEST WEIGHT OF THE EVIDENCE.”

      {¶12} In its sole assignment of error, Appellant, Director, Ohio

Department of Job and Family Services, contends the trial court erred in

reversing the decision of the Unemployment Compensation Review

Commission, a decision which Appellee argues was not unlawful,

unreasonable or against the manifest weight of the evidence. Appellee

seems to contend that the trial court "understood" and therefore "came to the

conclusion," that he "did not in fact quit his job," but rather that he resigned

for circumstances beyond his control, and therefore correctly reversed the

Review Commission's decision. Based upon our review of the record and

the following reasoning, we agree with Appellant.

      {¶13} Unlike most administrative appeals where we employ an abuse

of discretion standard, see Lorain City School Dist. Bd. of Edn. v. State Emp.
Pickaway App. No. 16CA15                                                    10

Relations Bd., 40 Ohio St.3d 257, 260-261, 533 N.E.2d 264 (1988), our

review of an appeal from the decision of the Commission is identical to that

of the common pleas court. We must affirm the Commission's decision

unless we find the decision to be unlawful, unreasonable, or against the

manifest weight of the evidence. See R.C. 4141.28(N)(1); Tzangas, Plakas

& Mannos v. Ohio Bur. Of Emp. Serv., 73 Ohio St.3d 694, 696, 653 N.E.2d

1207 (1995).

      {¶14} In making this determination, we must give deference to the

Commission in its role as finder of fact. We may not reverse the

Commission's decision simply because “reasonable minds might reach

different conclusions.” On close questions, where the board might

reasonably decide either way, we have no authority to upset the agency's

decision. Irvine v. Unemployment Comp. Bd. of Rev., 19 Ohio St.3d 15, 18,

482 N.E.2d 587 (1985). Instead, our review is limited to determining

whether the Commission's decision is unlawful, unreasonable or totally

lacking in competent, credible evidence to support it. Id.

      {¶15} R.C. 4141.29(D)(2)(a) provides that an individual may not

obtain unemployment benefits if he “has been discharged for just cause in

connection with his work.” See also Ford Motor Co. v. Ohio Bur. of Emp.

Serv., 59 Ohio St.3d 188, 189, 571 N.E.2d 727 (1991). “Just cause” exists if
Pickaway App. No. 16CA15                                                      11

a person of ordinary intelligence would conclude that the circumstances

justify terminating the employment. Irvine, supra, at 17. An analysis of just

cause must also consider the policy behind the Unemployment

Compensation Act, which was intended to provide financial assistance to

individuals who become unemployed through no fault of their own.

Tzangas, supra, at 697. Accordingly, “fault” on an employee's part is an

essential component of a just cause termination. Id. at paragraph two of the

syllabus. The determination of just cause depends on the “unique factual

considerations” of a particular case and is, therefore, primarily an issue for

the trier of fact. Irvine, supra, at 17. The Ohio Supreme Court has

recognized that “[t]here is, of course, not a slide-rule definition of just

cause.” Irvine, supra, at 17.

      {¶16} It is important to distinguish between just cause for discharge

in the context of unemployment compensation and in other contexts. An

employer may justifiably discharge an employee without incurring liability

for wrongful discharge, but that same employee may be entitled to

unemployment compensation benefits. See Adams v. Harding Mach. Co., 56

Ohio App.3d 150, 155, 565 N.E.2d 858, 862 (1989). Further, the Supreme

Court of Ohio has noted that "[i]n the case of a police officer, an

interpretation of 'just cause' must consider the particular needs of police
Pickaway App. No. 16CA15                                                     12

departments." City of Warrensville Heights v. Jennings, et al., 58 Ohio St.3d

206, 207, 569 N.E.2d 489 (1991). In Jennings, the Supreme Court further

noted as follows:

      “In Jones v. Franklin Cty. Sheriff (1990), 52 Ohio St.3d 40, 43,
      555 N.E.2d 940, 944, we quoted approvingly the common pleas
      court's statement ‘ “ that police officers are held to a higher
      standard of conduct than the general public.” ’ We further
      stated, ‘Law enforcement officials carry upon their shoulders
      the cloak of authority of the state. For them to command the
      respect of the public, it is necessary then for these officers even
      when off duty to comport themselves in a manner that brings
      credit, not disrespect, upon their department.’ Id. ‘[I]t is
      incumbent upon a police officer to keep his or her activities
      above suspicion both on and off duty.’ Id. at 44, 555 N.E.2d at
      945. Because a higher standard of conduct applies to police
      officers, just cause may exist regarding those officers even
      though it would not exist regarding another employee.” Id.

      {¶17} The Supreme Court of Ohio has further held as follows with

respect to suitability for positions:

      “Unsuitability for a position constitutes fault sufficient to
      support a just cause termination. An employer may properly
      find an employee unsuitable for the required work, and thus to
      be at fault, when: (1) the employee does not perform the
      required work, (2) the employer made known its expectations
      of the employee at the time of hiring, (3) the expectations were
      reasonable, and (4) the requirements of the job did not change
      since the date of the original hiring for that particular position.”
      Tzangas, Plakas & Mannos v. Ohio Bur. of Emp. Serv., supra,
      at 698-699; see also, Williams v. Ohio Dept. of Job and Family
      Servs., 129 Ohio St.3d 332, 2011-Ohio-2897, 951 N.E.2d 1031
      ¶ 27.

Further, in Williams, the Supreme Court held that:
Pickaway App. No. 16CA15                                                                                13

        “when employment is expressly conditioned upon obtaining or
        maintaining a license or certification and an employee agrees to
        the condition and is afforded a reasonable opportunity to obtain
        or maintain the license or certification, an employee's failure to
        comply with that condition is just cause for termination for
        unemployment compensation purposes.” Williams at ¶ 27.2

        {¶18} Here, Appellant contends that Appellee's employment was

expressly conditioned upon him maintaining his commission with the Ross

County Sheriff's Office, and that such commission was necessary for him to

perform the essential duties of his job. Appellee seemed to agree with this in

the early stages of his application for unemployment compensation benefits.

In fact, Appellee himself stated, in a letter dated January 23, 2015, which is

part of the Director's file, that he went through training to become a peace

officer and was given a "commission" by the elected sheriff (in Ross

County) and gained employment. In his letter, Appellee claimed that "[a]

'Commission' is what the sheriff gives his deputy's that gives them the right

to act in behalf of the sheriff in his absence." Appellee further explained

that once the Sheriff revoked his commission, he "no longer had deputy

authority this means I could not arrest, pat down, detain or act in any way as

an officer." Notably, Appellee further stated in the letter that:

       "[w]ith my employment working as a resource officer at the
       school it is in my contract that I must be a commissioned officer.
2
 Williams involved an employee who was discharged for failure to obtain her LISW certification, which
was a condition of her employment. We find it applicable to the present case, which involves the failure to
maintain the necessary "commission" to perform the essential functions of the job.
Pickaway App. No. 16CA15                                                         14

     * * * the sheriff pulled my commission and in return I did not
     meet the requirements of the contract at the school."

Appellee submitted this letter after the initial denial of his application for

benefits. However, as set forth above, a redetermination was issued again

denying Appellee benefits.

      {¶19} Somewhere along the way, primarily at the stage of the

telephone hearing, Appellee began to argue that his contract did not require

him to be a "commissioned" officer, but only a "certified" officer. He

further argued that his contract did not require that he be affiliated with the

Ross County Sheriff's Office. However, the transcript from the telephone

hearing evidences that the hearing officer noted this discrepancy. The

hearing officer repeatedly questioned Appellee about the contract

requirement that he be a "commissioned" rather than a "certified" officer.

Ultimately the hearing officer disallowed Appellee's claim as well, which

disallowance was affirmed by the Review Commission.

      {¶20} Interestingly, the trial court reversed the decision of the

Review Commission, stating in its decision that the requirement that

Appellee be affiliated with Ross County Sheriff's Office was a new

requirement and thus, that the requirements of the job had substantially

changed. As such, the trial court reasoned that the fourth prong of the

Tzangas test had not been met. The trial court further found that Appellee's
Pickaway App. No. 16CA15                                                       15

contract only required that he be a "certified peace officer," and not a

commissioned one. However, both of these determinations were factually

incorrect according to the record before us.

      {¶21} As set forth above, Appellee's contract of employment did

require that he "maintain a cooperative working relationship with the Ross

County Sheriff's Department." This is the equivalent of an "affiliation." It

further required that he "[b]e a commissioned law enforcement officer by the

state of Ohio." (Emphasis added). Taken together these provisions clearly

indicate Appellee was required to have an affiliation with the Ross County

Sheriff's Office, which he lost when he was decommissioned by the Sheriff.

Further, the loss of his commissioned status was a failure to abide by

conditions of employment. Additionally, we find Appellee's argument that

he only had to be "commissioned" by the State of Ohio, or rather, be a

"certified" officer, to be disingenuous. There is correspondence in the file

by Appellee's own hand describing the fact that he tried unsuccessfully to

obtain a commission from the Pickaway County Sheriff, but could not.

When Appellee lost his commission through Ross County, he was no longer

a commissioned officer, as required in his job description.

      {¶22} Appellee seems to argue, although not clearly, that because he

did not voluntarily give up his commission, he was unable to perform his
Pickaway App. No. 16CA15                                                      16

essential job functions at the school through no fault of his own. "An

employer may terminate an employee for economic necessity when some

condition prevents the employee from performing the duties of his job."

Sprowls v. Ohio Department of Job & Family Services, 156 Ohio App.3d

513, 2004-Ohio-1317, 806 N.E.2d 1030, ¶ 22. However, "just cause for

purposes of R.C. 4141.29(D)(2)(a) imposes a different standard; in this

context, the condition or circumstance which resulted in the termination

must be a matter for which the employee was at fault." Id. As further

explained in Sprowls, “ ‘[f]ault’ necessitates culpability, or blameworthiness,

on the employee's part. A mere causal nexus between the termination and

some circumstance or condition affecting the employee is insufficient to

show that the termination was for just cause.” Id.

      {¶23} We find Appellee's argument unpersuasive. Because Appellee

had his commission revoked by the Sheriff due to a complaint made by a

private citizen, we conclude some fault may be presumed on the part of

Appellee in losing his commission. Further, as set forth above, "[i]n the case

of a police officer, an interpretation of 'just cause' must consider the

particular needs of police departments." Jennings, supra, at 207. Here, for

reasons involving a complaint made to the Sheriff's Office, the Sheriff made

the decision to revoke Appellee's commission. It appears, based upon this
Pickaway App. No. 16CA15                                                     17

record, that Appellee was at fault in having his commission revoked.

Further, without a commission, Appellee could not perform the essential

duties of his job. Finally, as set forth above, the record supports the Review

Commission's determination that Appellee was aware of this requirement

upon hire, that the requirements of the job did not change, that Appellee

failed to maintain the required commission, as well as the required affiliation

with the Ross County Sheriff's Office and, as such, could not perform the

requirements of the job. Thus, the presence of these factors results in

Appellee’s unsuitability for the resource officer position with the school

under the Tzangas test. Tzangas, supra, at 698-699.

      {¶24} As such, because the Review Commission's decision was not

unlawful, unreasonable, or against the manifest weight of the evidence, we

conclude that the trial court erred in reversing the decision. Accordingly, the

judgment of the trial court is reversed.

                                                JUDGMENT REVERSED.
Pickaway App. No. 16CA15                                                        18

                           JUDGMENT ENTRY


       It is ordered that the JUDGMENT BE REVERSED and that Appellant
shall recover costs from Appellee.

      The Court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this Court directing
the Pickaway County Common Pleas Court to carry this judgment into
execution.

       Any stay previously granted by this Court is hereby terminated as of
the date of this entry.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Abele, J. & Hoover, J.: Concur in Judgment and Opinion.


                                        For the Court,


                                 BY: ______________________________
                                     Matthew W. McFarland, Judge




                          NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
