[Cite as Crossley v. Coshocton, 2015-Ohio-3577.]


                                       COURT OF APPEALS
                                   COSHOCTON COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

DEBORAH S. CROSSLEY                                   JUDGES:
                                                      Hon. William B. Hoffman, P.J.
        Plaintiff-Appellant                           Hon. Patricia A. Delaney, J.
                                                      Hon. Craig R. Baldwin, J.
-vs-
                                                      Case No. 2015CA00001
CITY OF COSHOCTON

        Defendant-Appellee                            OPINION




CHARACTER OF PROCEEDING:                           Appeal from the Coshocton County Court of
                                                   Common Pleas, Case No. 2014-CI-0221


JUDGMENT:                                          Affirmed


DATE OF JUDGMENT ENTRY:                            August 31, 2015


APPEARANCES:


For Plaintiff-Appellant                            For Defendant-Appellee

MICHAEL A. MOSES                                   TIMOTHY E. COWANS
Moses Law Offices, LLC                             Scott, Scriven & Wahoff, LLP
100 East Broad Street                              250 E. Broad Street
Suite 1350                                         Suite 900
Columbus, Ohio 43215                               Columbus, Ohio 43215
Coshocton County, Case No. 2015CA00001                                                  2

Hoffman, P.J.


       {¶1}   Plaintiff-appellant Deborah S. Crossley appeals the December 16, 2014

Judgment Entry entered by the Coshocton County Court of Common Pleas in favor of

Defendant-Appellee City of Coshocton finding Appellant was an unclassified employee;

therefore, not subject to the jurisdiction of the Civil Service Commission.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   Appellant was appointed as a part-time Auditor Clerk by the City of

Coshocton on July 9, 2010. On February 14, 2011, Appellant began working as a full-

time Auditor Clerk. In July of 2012, the then Deputy Auditor retired.         As a result,

Appellant was assigned Deputy Auditor duties and responsibilities as of July, 2012.

Appellant did not change job titles.

       {¶3}   The City of Coshocton is a political subdivision operating under Title 3 of

the Ohio Revised Code to administer the municipal government for the residents of

Coshocton, Ohio. The City has the power to employ and discharge employees.

       {¶4}   During her employment with the City, Appellant was covered by the

Coshocton Personnel Policies and Procedures Manual, which includes a system of

progressive discipline and a procedure for appealing serious disciplinary actions

involving loss of pay.

       {¶5}   It is undisputed, as an Auditor Clerk, Appellant's duties included:

processing invoices for fixed assets, inputting descriptions for items purchased,

operating the Egov Computer Database, monthly reports for VIP payroll software

program, processing purchase orders and input invoices, processing payroll and

reconciling timesheets, running electronic transfers for employee pay for direct deposit ,
Coshocton County, Case No. 2015CA00001                                                  3


inputting employee wages and tax information, answering phones, receiving checks

and issuing receipts (including signing documents on behalf of the Auditor and using a

stamp with the Auditor's signature), accessing the Auditor's bank account, managing a

fund called the Bachert Fund, issuing letters to citizens, and various other duties.

       {¶6}   The City Auditor authorizes and approves all purchases, made by the City

makes policy decisions relating to City finances, and interprets city ordinances, laws

and regulations relating to the source of funding for purchases.

       {¶7}   On February 22, 2013, Appellant's employment was terminated with the

City of Coshocton. Appellant filed an appeal with the Civil Service Commission. On

July 31, 2013, the Civil Service Commission issued a letter stating Appellant's

employment records listed her employment as unclassified; therefore, beyond the

purview of the Civil Service Commission.

       {¶8}   Appellant filed an appeal to the Coshocton County Court of Common

Pleas. A stipulated order remanded the matter to the Civil Service Commission for an

evidentiary hearing on the jurisdictional question of whether Appellant's position of

Auditor Clerk falls within classified service.

       {¶9}   On May 21, 2014, the Commission issued a decision finding Appellant's

position was not in the classified service; therefore, the Civil Service Commission lacked

jurisdiction over the appeal.

       {¶10} Via Judgment Entry of December 16, 2014, the trial court affirmed the

decision of the Commission.

       {¶11} Appellant appeals, assigning as error:
Coshocton County, Case No. 2015CA00001                                               4


      {¶12} "I. THE DECISION OF THE LOWER COURT WAS AN ABUSE OF

DISCRETION INSOFAR AS IT AFFIRMED THE DECISION OF THE CIVIL SERVICE

COMMISSION DISMISSING THE APPEAL OF APPELLANT FROM HER REMOVAL

ON THE GROUND THAT SHE WAS AUTHORIZED TO ACT FOR AND IN PLACE OF

THE CITY AUDITOR OR HELD A FIDUCIARY RELATION TO THE AUDITOR,

DISREGARDING EVIDENCE SHOWING HER JOB DUTIES WERE CLERICAL,

ROUTINE AND MINISTERIAL IN NATURE AND BECAUSE IT WAS NOT

SUPPORTED BY RELIABLE, PROBATIVE AND SUBSTANTIAL EVIDENCE AND

WAS NOT IN ACCORDANCE WITH LAW.

      {¶13} "II. THE DECISION OF THE LOWER COURT WAS AN ABUSE OF

DISCRETION INSOFAR AS IT AFFIRMED THE DECISION OF THE CIVIL SERVICE

COMMISSION DISMISSING THE APPEAL OF APPELLANT FROM HER REMOVAL

ON THE GROUND THAT SHE WAS UNCLASSIFIED UNDER R.C. SEC. 124.11(A)(8)

BECAUSE THE AUDITOR FAILED TO DESIGNATE HER POSITION AS EXEMPT AS

REQUIRED BY THE CITY'S ADOPTED PERSONNEL POLICY HANDBOOK, O.A.C.

SEC. 123:1-5-01, AND SAID FINDING WAS NOT SUPPORTED BY RELIABLE,

PROBATIVE AND SUBSTANTIAL EVIDENCE, AND WAS NOT IN ACCORDANCE

WITH LAW."

                                              I.

      {¶14} In Harting v. Massillon Civil Service Commission, Stark App. No.

2014CA00114, 2015-Ohio-666, this Court held,

             R.C. 2506.04 sets forth the applicable standard of review for a court

      of common pleas to review an administrative appeal:
Coshocton County, Case No. 2015CA00001                                                  5


             "The court may find that the order, adjudication, or decision is

      unconstitutional,    illegal,   arbitrary,   capricious,   unreasonable,     or

      unsupported by the preponderance of substantial, reliable, and probative

      evidence on the whole record. Consistent with its findings, the court may

      affirm, reverse, vacate, or modify the order, adjudication, or decision, or

      remand the cause to the officer or body appealed from with instructions to

      enter an order, adjudication, or decision consistent with the findings or

      opinion of the court. The judgment of the court may be appealed by any

      party on questions of law as provided in the Rules of Appellate Procedure

      and, to the extent not in conflict with those rules, Chapter 2505 of the

      Revised Code."

      {¶15} In Henley v. Bd. of Zoning Appeals, 90 Ohio St.3d 142, 147, 735 N.E.2d

433 (2000), the Ohio Supreme Court stated:

             “[W]e have distinguished the standard of review to be applied by

      common pleas courts and courts of appeals in R.C. Chapter 2506

      administrative appeals. The common pleas court considers the ‘whole

      record,’ including any new or additional evidence admitted under R.C.

      2506.03,   and      determines     whether    the   administrative   order   is

      unconstitutional,    illegal,   arbitrary,   capricious,   unreasonable,     or

      unsupported by the preponderance of substantial, reliable, and probative

      evidence (citation omitted).” Pataskala Banking Co. v. Etna Tp. Bd. of

      Zoning Appeals, 5th Dist. Licking Nos. 07–CA–116, 07–CA–117, 07–CA–

      118, 2008–Ohio2770, ¶ 13.
Coshocton County, Case No. 2015CA00001                                                 6


             This court's standard of review of a R.C. 2506.04 appeal is “more

      limited in scope.” Kisil v. Sandusky, 12 Ohio St.3d 30, 34, 465 N.E.2d 848

      (1984). “This statute grants a more limited power to the court of appeals to

      review the judgment of the common pleas court only on ‘questions of law,’

      which does not include the same extensive power to weigh ‘the

      preponderance of substantial, reliable and probative evidence,’ as is

      granted to the common pleas court. Within the ambit of ‘questions of law’

      for appellate court review would be abuse of discretion by the common

      pleas court.” Id. at fn. 4. “It is incumbent on the trial court to examine the

      evidence. Such is not the charge of the appellate court. * * * The fact that

      the court of appeals * * * might have arrived at a different conclusion than

      the administrative agency is immaterial. Appellate courts must not

      substitute their judgment for those of an administrative agency or a trial

      court absent the approved criteria for doing so.” Lorain City School Dist.

      Bd. of Edn. v. State Emp. Relations Bd., 40 Ohio St.3d 257, 261, 533

      N.E.2d 264 (1988). We must affirm the trial court's decision if such

      evidence exists in the record. Kisil, supra, 12 Ohio St.3d at 34.

      {¶16} Thus, we review the trial court's judgment to determine if the lower court

abused its discretion in deciding that a preponderance of reliable, probative, and

substantial evidence supported the administrative decision. Deem v. Fairview Park, 8th

Dist. Cuyahoga No. 96843, 2011–Ohio–5836, ¶ 10.
Coshocton County, Case No. 2015CA00001                                                       7


      {¶17} At issue herein is whether the trial court, as a matter of law, abused its

discretion in deciding Appellant was an unclassified employee as an Auditor Clerk for

the City of Coshocton. O.R.C. 124.11(A)(8) and 124.11(A)(28) read, respectively,

             The civil service of the state and the several counties, cities, civil service

      townships, city health districts, general health districts, and city school districts of

      the state shall be divided into the unclassified service and the classified service.

             (A) The unclassified service shall comprise the following positions, which

      shall not be included in the classified service, and which shall be exempt from all

      examinations required by this chapter:

             ***

             (8) Four clerical and administrative support employees for each of

      the elective state officers, four clerical and administrative support

      employees for each board of county commissioners and one such

      employee for each county commissioner, and four clerical and

      administrative support employees for other elective officers and each of

      the principal appointive executive officers, boards, or commissions, except

      for civil service commissions, that are authorized to appoint such clerical

      and administrative support employees;

             ***

             (28) For cities, counties, civil service townships, city health districts,

      general health districts, and city school districts, the deputies and

      assistants of elective or principal executive officers authorized to act for
Coshocton County, Case No. 2015CA00001                                                 8


       and in the place of their principals or holding a fiduciary relation to their

       principals;

       {¶18} Appellant maintains the Commission erroneously applied these provisions

to her employment as an Auditor Clerk with the City of Coshocton in finding her to be an

unclassified employee.

       {¶19} In 1993, the City of Coshocton adopted Ordinance No. 31.36, providing,

"The City Auditor may appoint a deputy who, in the absence or disability of the Auditor

shall perform his duties and such additional personnel in the Auditor's Department with

such compensation as may be authorized and designated by Council."

       {¶20} Further, R.C. 733.19 reads, "Deputy auditor in cities," providing, "The city

auditor may, when authorized by ordinance, appoint a deputy who, in the absence or

disability of such auditor, shall perform his duties."

       {¶21} Appellant maintains her duties were substantially ministerial and routine;

warranting her placement in the classified civil service. Appellant's duties set forth

above, included: processing invoices for fixed assets, inputting descriptions for items

purchased, operating the Egov Computer Database, monthly reports for VIP payroll

software program, processing purchase orders and input invoices, processing payroll

and reconciling timesheets, running electronic transfers for employee pay for direct

deposit , inputting employee wages and tax information, answering phones, receiving

checks and issuing receipts (including signing documents on behalf of the Auditor and

using a stamp with the Auditor's signature), accessing the Auditor's bank account,

managing a fund called the Bachert Fund, issuing letters to citizens, and various other

clerical duties.
Coshocton County, Case No. 2015CA00001                                              9


     {¶22} At the January 16, 2014 Commission Hearing, Auditor Kirkpatrick testified,

            A. We handle thousands and thousands of dollars that come

     through the Auditor's office on a regular basis and we have all kinds of

     confidential information that we're responsible for. We have medical and

     health insurance, EEB information that was locked in a cabinet, and drug

     tests that come back from our drug testing for new employees. There are

     drug tests that were confidential information.

            When it comes to payroll, I feel I have to have somebody that I trust

     because they have employees' social security numbers, their birth dates,

     their bank account numbers, all the information about employees. So I

     have to have someone that I can trust, that I feel would, you know,

     understand the ramifications if that information would, you know, be let

     out.

            Q. Did you also consider interacting with others important for that

     position?

            A. Yes.

            Q. Why so?

            A. I had to have a person that I felt could interact with department

     heads. We have to deal with department heads and also it is political

     office, so you want to put staff there that would work with you.

            Q. Would it be correct to say that for this particular position you

     would expect that interaction?

            A. I would expect that from any employee that I have.
Coshocton County, Case No. 2015CA00001                                                  10


          Tr. at 13-14.

          {¶23} The Civil Service Commission's Findings of Fact and Conclusions of Law

states,

                 5. Among other duties, Mrs. Crossley received possession of and

          had to make deposits of cash and checks, had access to and used

          confidential information, signed legal documents on behalf of the Auditor

          and used a stamp with Auditor's signature, interacted with City employees

          and other City Department Heads and Elected Officials to fulfill Auditor

          duties, had access to the Auditor's PNC Bank Account, managed the

          cemetery fund which at times had over $400,000 in funds, was on

          occasion the only employee in the Auditor's office, and processed financial

          information such as tax withholding and health insurance information.

                 6. The Auditor, because of the nature of Mrs. Crossley's duties and

          the small staff, placed a special degree of trust and confidence in Mrs.

          Crossley being able to perform duties in a trustworthy capacity and had

          granted Mrs. Crossley the occasional authority to act on her behalf by

          signing documents and using a stamp signature.

          {¶24} An employee may be determined to have a mix of classified and

unclassified duties. Ohio Courts have held in such situations, even if the employee's

primary responsibilities may have been classified duties, if the employee is found to do

some unclassified duties, the position is unclassified. Barr v. Harrison Cty. Common

Pleas Court, Tenth Dist.       No. 05AP-760, 2006-Ohio-1348; Honaker v. Scioto Cty.

Common Pleas Court, Fourth Dist. No. 92-CA-2087, 92-CA-2088.
Coshocton County, Case No. 2015CA00001                                                  11

       {¶25} A fiduciary has been defined in In re Termination of Employment of Pratt,

40 Ohio St.2d 107, 321 N.E.2d 603 (1974) as "one in which special confidence and trust

is reposed in the integrity and fidelity of another and there is a resulting position of

superiority or influence, acquired by virtue of this special trust." The Supreme Court of

Ohio held the emphasis should be placed upon whether the assigned job duties require,

as essential qualifications over and above technical competency requirements, a high

degree of trust, confidence, reliance, integrity and fidelity. Id.

       {¶26} Ohio Administrative Code Section 124-1-02(I) provides,

              (1) “Fiduciary relationship” generally means a relationship where

       the appointing authority reposes a special confidence and trust in the

       integrity and fidelity of an employee to perform duties which could not be

       delegated to the average employee with knowledge of the proper

       procedures. These qualifications are over and above the technical

       competency requirements to perform the duties of the position. Whether

       one position occupies a fiduciary relationship to another is a question of

       fact to be determined by the board. (Emphasis added.)

       {¶27} Here, the Commission found Appellant had been granted authority to act

on behalf of the auditor. The Commission further found Appellant's duties evolved over

time and she became responsible for performing, along with the other employee, all

operations of the Auditor's office. As a result, the Commission concluded, the position

could not be objectively tested for and necessarily had to be in the unclassified service.
Coshocton County, Case No. 2015CA00001                                                 12


      {¶28} Based upon the foregoing, we do not find the trial court abused its

discretion in finding a preponderance of reliable, probative, and substantial evidence

supported the Civil Service Commission's decision.

      {¶29} The first assignment of error is overruled.

                                               II.

      {¶30} In the second assignment of error, Appellant argues the Commission

erroneously relied on state law without considering the import of the City's Charter and

Personnel Manual.

      {¶31} O.A.C. Section 123:1-5-01 Unclassified Service, reads

             (A) Designation of exemptions. Within sixty days after taking office,

      each elective officer and each principal appointive officer, board,

      commission, or body having the power of appointment to, or removal from,

      positions in the service of the state in any office, department, commission,

      board or institution, shall designate to the director the positions for which

      exemption from the competitive classified service is claimed under the

      provisions of division (A)(8) of section 124.11 of the Revised Code.

             Thereafter, no change in the designation of exemptions claimed

      under this provision shall be made during the incumbency of such officer,

      board, or commission unless an agency reorganization occurs as a result

      of legislative action during the appointing officer's, board's or commission's

      term of office or the duties of the position have changed to an extent that

      warrants a change in the classification of the position. When a change in

      duties warrants a change in classification under this rule, only the
Coshocton County, Case No. 2015CA00001                                                13


      classification of the position shall be changed, otherwise the actual

      position's status shall remain the same. The appointive officer, board,

      commission, or body shall file a statement of reasons for such proposed

      change with the director of administrative services and receive

      confirmation from the director of administrative services that the change is

      acceptable prior to the change becoming effective.

             If exemptions have not been designated by the appointing officer,

      board, or commission as herein provided within sixty days after taking

      office, the exemptions previously designated and in effect under this

      provision shall be considered the exemptions claimed by such appointing

      authority and will continue to be in effect.

      {¶32} The City's Personnel Policy states, "The position must, however, be

substantially fiduciary or administrative." The Policy sets forth a procedure for

exempting employees from the classified service.

      {¶33} However, R.C. 124.11 reads,

             The mere failure of an employee's appointing authority to file a

      statement with the department of administrative services indicating that

      the employee is in the unclassified civil service, or the mere late filing of

      such a statement, does not prevent the state personnel board of review

      from determining that the employee is in the unclassified civil service. In

      determining whether an employee is in the unclassified civil service, the

      state personnel board of review shall consider the inherent nature of the

      duties of the employee's classification during the two-year period
Coshocton County, Case No. 2015CA00001                                                  14


      immediately preceding the appointing authority's appealable action

      relating to the employee.

      {¶34} The Ohio Supreme Court held in McAninch v. Crumbley 65 Ohio St.2d 31,

417 N.E.2d 1253 (1981), the mere failure of an employee's appointing authority to file a

statement with the department of administrative services indicating that the employee is

in the unclassified civil service, or the mere late filing of such a statement, does not

prevent the state personnel board of review from determining that the employee is in the

unclassified civil service. The Court held, in determining whether an employee is in the

unclassified civil service, the state personnel board of review shall consider the inherent

nature of the duties of the employee's classification during the two-year period

immediately preceding the appointing authority's appealable action relating to the

employee. Id.

      {¶35} Here, the Commission found the inherent nature of the duties performed

by Appellant and the trust placed in Appellant by the Auditor rendered Appellant's status

as an unclassified employee. We find the trial court did not abuse its decision in finding

a preponderance of reliable, probative, and substantial evidence supported the

administrative decision.

      {¶36} The second assignment of error is overruled.
Coshocton County, Case No. 2015CA00001                                     15


      {¶37} The December 16, 2014 Judgment Entry of the Coshocton County Court

of Common Pleas is affirmed.

By: Hoffman, P.J.

Delaney, J. and

Baldwin, J. concur
