[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State ex rel. O’Grady v. Griffing, Slip Opinion No. 2014-Ohio-3687.]




                                        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. 2014-OHIO-3687
      THE STATE EX REL. O’GRADY, APPELLEE, v. GRIFFING, APPELLANT.
   [Until this opinion appears in the Ohio Official Reports advance sheets,
                it may be cited as State ex rel. O’Grady v. Griffing,
                         Slip Opinion No. 2014-Ohio-3687.]
Public Employees Retirement System—Duty to certify final-earnable-salary
        date—Evidence establishing date of retirement.
     (No. 2013-1151—Submitted May 27, 2014—Decided August 28, 2014.)
   APPEAL from the Court of Appeals for Trumbull County, No. 2011-T-0122,
                                   2013-Ohio-2615.
                               ____________________
        Per Curiam.
        {¶ 1} We reverse the decision of the Eleventh District Court of Appeals.
Relator-appellee, Louise Rowland (Louise O’Grady when the case was filed),
sued respondent-appellant, David Griffing, over his refusal, as the auditor of the
city of Warren, to certify O’Grady’s final-earnable-salary date to the Ohio Public
Employees Retirement System (“OPERS”). Griffing claims that O’Grady was
never terminated, because she has continued to work as a bailiff for the Warren
                               SUPREME COURT OF OHIO




Municipal Court and that therefore he cannot certify her final-earnable-salary
date.
        {¶ 2} No direct evidence appears in the record that O’Grady was actually
terminated or resigned; there is only secondhand evidence that she intended to
retire. Absent such direct evidence, Griffing cannot accurately certify her final-
earnable-salary date to OPERS.
                                         Facts
        {¶ 3} O’Grady became an employee of the city of Warren in 1979.
Judge James A. Ravella appointed her a statistical clerk for the municipal court.
She was later appointed to various other positions with the court until 2007, when
she was appointed deputy bailiff/legal secretary to Judge Gysegem, a position that
she has held to the present.
        {¶ 4} In November 2010, O’Grady discussed with Judge Gysegem her
wish to retire and receive OPERS benefits, but to continue working for him.
Gysegem also wanted her to continue in her job. On November 19, 2010, the
judge sent a letter to the clerk of courts advising her that as of December 31,
2010, O’Grady was “going to take her PERS Retirement” but would “remain as a
Court employee in her present position.” A payroll accountant in Griffing’s
office received a copy of this letter.
        {¶ 5} Griffing’s office also received two journal entries from the judge,
the first appointing O’Grady to her position effective December 8, 2010, and the
second doing the same effective January 1, 2011. The judge did not issue an
entry terminating O’Grady’s employment.
        {¶ 6} For an employee to receive OPERS benefits, the employer must
certify on form SRF-85 the employee’s final-earnable-salary date. Under OPERS
directives, an employer is not to submit the form if the employee’s final-earnable-
salary date is unknown. Griffing asserts that he cannot certify O’Grady’s final
date and salary.



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                                January Term, 2014




       {¶ 7} In December 2011, O’Grady filed this mandamus case in the
Eleventh District to compel Griffing to certify her final-earnable-salary date to
OPERS. The court of appeals granted the writ on June 24, 2013, holding that
O’Grady had a clear legal right to have her final payroll certified and that Griffing
had a clear legal duty to certify it. 2013-Ohio-2615, 994 N.E.2d 859, ¶ 25.
       {¶ 8} Griffing appealed as of right, and the court of appeals stayed
enforcement of its decision pending this appeal.
                                      Analysis
       {¶ 9} Respondent Griffing has moved for oral argument in the case, with
no response from O’Grady. In cases in which oral argument is not mandatory—
such as cases originating in this court or appeals from cases originating in a court
of appeals—this court has discretion to grant oral argument, and “ ‘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 courts of appeals.’ ” State ex rel. Jean–Baptiste v. Kirsch, 134
Ohio St.3d 421, 2012-Ohio-5697, 983 N.E.2d 302, ¶ 10, quoting State ex rel.
Davis v. Pub. Emps. Retirement Bd., 111 Ohio St.3d 118, 2006-Ohio-5339, 855
N.E.2d 444, ¶ 15.
       {¶ 10} There is no constitutional issue here, and the parties have pointed
to no conflict among the courts of appeals on any legal issue in this case. We
decide the case without oral argument.
       {¶ 11} To prevail in this mandamus case, O’Grady must establish a clear
legal right to the requested relief, a clear legal duty on the part of the Griffing to
provide it, and the lack of an adequate remedy in the ordinary course of the law.
State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452,
¶ 6. O’Grady must prove that she is entitled to the writ by clear and convincing
evidence. Id. at ¶ 13.




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       {¶ 12} Several important legal principles govern this case. First, OPERS
benefits do not—as stated by the court of appeals—vest when a public employee
reaches a particular age or number of years of service. Rather, an employee may
become eligible to receive those benefits when she reaches a certain age and has
attained certain years of service. The employee’s benefits vest only when she
begins receiving OPERS benefits. R.C. 145.561(A) (“the granting of a retirement
allowance, annuity, pension, or other benefit to any person pursuant to action of
the public employees retirement board vests a right in such person, so long as the
person remains the recipient of any benefit * * *”).
       {¶ 13} Because O’Grady has not received any OPERS benefits, her rights
in such benefits have not vested. Rather, she has become eligible to apply for the
benefits but must meet other conditions before she may receive those benefits.
       {¶ 14} Second, a public employee must terminate service before receiving
retirement benefits. Ohio Adm.Code 145-2-51 (benefits unavailable before “[t]he
last date for which compensation was paid”).           Whether O’Grady actually
terminated her service is the core question here. A public employee need not
leave public employment permanently, but may terminate employment for
purposes of OPERS retirement and then be reemployed immediately, upon
forfeiting two months of benefits. R.C. 145.38(B).
       {¶ 15} Third, Griffing’s duty to submit information to OPERS regarding
an employee’s retirement is not ministerial, as asserted by both O’Grady and the
lower court. Rather, public employers have a duty to submit accurate information
so that OPERS can correctly assess whether an employee is eligible for benefits.
       {¶ 16} Thus, the case comes down to the question whether O’Grady
terminated her employment with the Warren Municipal Court before being
rehired in the same position. O’Grady asserts that she did; Griffing asserts that
she did not actually terminate her employment. Griffing argues that the judge had




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                               January Term, 2014




to put on an entry terminating O’Grady’s employment and that there had to be a
break in service for him to certify a final employment date.
       {¶ 17} O’Grady argues correctly that a court employee may resign or
retire voluntarily without the need for a judgment entry and that under R.C.
145.38(B), an employee may retire and resume employment immediately, without
an actual break in service, if the employee submits the appropriate form and
forfeits two months of benefits.
       {¶ 18} O’Grady also argues that her final earnable salary should have
been determined as of her claimed retirement date, December 31. 2010.
However, the only evidence of O’Grady’s retirement available to Griffing at the
time was a November 19, 2010 letter that Judge Gysegem had sent to the clerk of
courts advising her that as of December 31, 2010, O’Grady “is going to take her
PERS retirement” but would “remain as a court employee in her present
position.”   He also had the two journal entries hiring O’Grady as a deputy
bailiff/secretary, but none terminating her as of December 31, 2010. O’Grady
herself apparently never wrote a letter of resignation, and Gysegem never
officially terminated O’Grady as of December 31, 2010.
       {¶ 19} In other words, while Griffing might have known that Judge
Gysegem thought that O’Grady intended to retire as of December 31, 2010, he
was never provided with direct evidence, such as a letter of resignation or
retirement from O’Grady herself or an official termination from Gysegem. And
even if the letter from Judge Gysegem to the clerk of courts establishes O’Grady’s
intent at that time to retire for OPERS purposes and to return to work, O’Grady
could have changed her mind before the retirement date. Without direct evidence
that she had actually resigned or been terminated, Griffing could not know for
sure that O’Grady had carried out the intent expressed in the judge’s letter.
O’Grady never terminated her service for purposes of OPERS, because she failed




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to write a letter of resignation or get the judge to officially terminate her as of
December 31, 2010.
                                    Conclusion
       {¶ 20} Because respondent, Auditor Griffing, had no direct evidence of
O’Grady’s retirement, he had no clear legal duty to file the form SRF-85 with
O’Grady’s final-earnable-salary date. We therefore reverse.
                                                               Judgment reversed.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
                             ____________________
       John B. Juhasz, for appellee.
       Comstock, Springer & Wilson Co., L.P.A., and Thomas J. Wilson, for
appellant.
       Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, Peter
K. Glenn-Applegate, Deputy Solicitor, and Matthew T. Green, Assistant Attorney
General, for amicus curiae, state of Ohio.
                          _________________________




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