[Cite as Malhotra v. Montgomery Cty. Juvenile Ct., 2014-Ohio-1861.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                MONTGOMERY COUNTY

 RAJSHREE MALHOTRA                                :
                                                  :     Appellate Case No. 25943
          Plaintiff-Appellant                     :
                                                  :     Trial Court Case No. 13-CV-2948
 v.                                               :
                                                  :
 MONTGOMERY COUNTY                                :
 JUVENILE COURT                                   :     (Civil Appeal from
                                                  :     (Common Pleas Court)
          Defendant-Appellee                      :
                                                  :
                                              ...........
                                             OPINION
                                Rendered on the 2nd day of May, 2014.
                                              ...........

RAJSHREE MALHOTRA, 3737 Berrywood Drive, Dayton, Ohio 45424
     Attorney for Plaintiff-Appellee

JONATHAN A. KETTER, Atty. Reg. #0084064, Montgomery County Prosecutor’s Office, 301
West Third Street, Post Office Box 972, Dayton, Ohio 45422
      Attorney for Defendant-Appellant

                                             .............

HALL, J.,

        {¶ 1}    Rajshree Malhotra appeals from the trial court’s affirmance of a State Personnel

Board of Review (SPBR) order dismissing for lack of jurisdiction an appeal challenging her
termination as a juvenile-court magistrate.

       {¶ 2}    Malhotra advances three assignments of error. First, she contends the trial court

erred in failing to hold a trial or to remand the case to the SPBR for an evidentiary hearing.

Second, she claims the trial court erred in not considering an affidavit she filed. Third, she asserts

that the trial court erred in failing to engage in a de novo interpretation of the pertinent statutory

law and the Ohio Constitution.

       {¶ 3}    The record reflects that Malhotra worked as a magistrate for the Montgomery

County Juvenile Court (MCJC) from October 2001 until her termination in January 2013.

Malhotra appealed her termination to the SPBR. Thereafter, MCJC moved to dismiss the appeal

for lack of jurisdiction. MCJC argued that Malhotra was an “unclassified” employee and that the

SPBR only had jurisdiction to hear appeals from employees in the “classified” service. Malhotra

opposed the motion, arguing that she qualified as a classified employee. The SPBR sustained the

motion to dismiss without a hearing. It reasoned that Malhotra was exempt from the classified

civil service pursuant to R.C. 124.11(A)(32) and R.C. 2151.13. Malhotra moved for

reconsideration. The SPBR overruled the motion.

       {¶ 4}    Malhotra then filed an administrative appeal in Montgomery County Common

Pleas Court. Following a telephone conference, the trial court set a briefing schedule and

indicated that the matter would be deemed submitted after briefing. (Doc. #13). The record does

not reflect any objection to this procedure. Malhotra filed a brief in accordance with the trial

court’s order. (Doc. #14). The brief included an affidavit in which she averred that she had been

hired after her merit and fitness were determined through a competitive examination. According

to Malhotra, this “examination” consisted of two rounds of interviews. MCJC filed its own brief,

arguing that she was an unclassified employee by statute. MCJC also maintained that undergoing
                                                                                               3


two sets of interviews did not constitute a competitive examination for purposes of making

Malhotra a classified employee.

       {¶ 5}   In a September 16, 2013 decision and judgment entry, the trial court affirmed the

SPBR order dismissing Malhotra’s appeal from her termination. In support, the trial court

reasoned:

               ORC Section 2506.03 sets forth the limited circumstances under which

       evidence outside the administrative record may be considered. This was a matter

       that was discussed with Appellant and counsel for the Appellee during the

       telephone scheduling of this matter. During that conference, the court specifically

       asked if Appellant would be seeking to introduce any evidence outside the record.

       She said she would not, but has submitted an affidavit nonetheless. She made no

       motion prior to its submission and it fails to set forth any of the statutory

       conditions, which would warrant its consideration. The affidavit is not being

       considered.

               The issue for review is whether or not the State Personnel Board of

       Review properly dismissed her claim for lack of jurisdiction. Appellant’s brief

       reiterates the position she set forth before the board and included as part of the

       administrative record filed with this court.

               Appellant argues that the interview process she underwent was tantamount

       to a competitive exam. Her description of that process belies the argument. The

       process was, in essence, a screening of candidates by a broader panel followed by

       a second interview with the two judges of the court. It is reasonably inferred that
                                                                                                   4


       the judges are the ones who made the decision to hire her. There is nothing

       objective to indicate what may have swayed the judges to hire her. She served 11

       years in her position as magistrate, all of which included Judge Kunz on the

       bench. He has been the administrative judge 8 of those years and [was ] the one

       who terminated her.

               Included in the record is a “POSITION DESCRIPTION” for Magistrate.

       Under “DISTINGUISHING JOB CHARACTERISTICS,” it reads, in part, “Serves

       at the pleasure of the Administrative Judge.”

               The court finds that the [SPBR] order is supported by reliable, probative,

       and substantial evidence and is in accordance with law (R.C. 2151.13) and is

       AFFIRMED.

(Doc. #17 at 1-2).

       {¶ 6}    Before turning to Malhotra’s arguments, we must consider the scope of our

review. When reviewing an administrative appeal brought under R.C. 119.12, a trial court may

affirm the agency’s order “if it finds, upon consideration of the entire record and any additional

evidence the court has admitted, that the order is supported by reliable, probative, and substantial

evidence and is in accordance with law.” Bartchy v. State Bd. of Edn., 120 Ohio St.3d 205,

2008-Ohio-4826, 897 N.E.2d 1096, ¶ 35-36, quoting R.C. 119.12. Our review is more limited.

“‘It is incumbent on the trial court to examine the evidence. Such is not the charge of the

appellate court. The appellate court is to determine only if the trial court has abused its

discretion.’” Id. at ¶ 41, quoting Rossford Exempted Village School Dist. Bd. of Edn. v. State Bd.

of Edn., 63 Ohio St.3d 705, 590 N.E.2d 1240 (1992).
[Cite as Malhotra v. Montgomery Cty. Juvenile Ct., 2014-Ohio-1861.]
         {¶ 7}        In her first assignment of error, Malhotra contends the trial court “erred in failing

to set the matter for trial or in the alternative remanding same to the State Personnel Board of

Review for an evidentiary hearing * * *.” Malhotra contends a trial or remand was necessary to

determine whether it was practicable for MCJC to hire magistrates through a competitive

examination process and whether she actually went through such a process. Malhotra maintains

that these issues were material to her status as a classified or unclassified employee and that the

record was devoid of evidence on them. Therefore, she insists that a trial or a remand was

necessary.

         {¶ 8}        Section 10, Article XV of the Ohio Constitution provides: “Appointments and

promotions in the civil service of the state, the several counties, and cities, shall be made

according to merit and fitness, to be ascertained, as far as practicable, by competitive

examinations. Laws shall be passed providing for the enforcement of this provision.” One law

passed to implement or enforce Section 10, Article XV is R.C. 124.11. This court has recognized

that “Ohio’s civil service scheme is thus ‘embedded in the Ohio Constitution,’ and R.C. Chapter

124 was enacted to effectuate the civil service system.” State ex rel. Robinson v. Dayton,

2012-Ohio-5800, 984 N.E.2d 353, ¶ 23 (2d Dist.), quoting Chubb v. Ohio Bur. of Workers’

Comp., 81 Ohio St.3d 275, 277, 690 N.E.2d 1267 (1998). In particular, R.C. 124.11(A) identifies

thirty-two positions that are in the “unclassified service.” These positions “shall not be included

in the classified service” and “shall be exempt from all [competitive] examinations[.]”1 Id. Under

R.C. 124.11(A)(32), the unclassified service includes “[e]mployees placed in the unclassified

service by another section of the Revised Code.” Here the trial court correctly found that another

            1
               In turn, R.C. 124.11(B) identifies positions in the “classified service” for which “it is practicable to determine the merit and
 fitness of applicants by competitive examinations.”
                                                                                                  6


section of the Revised Code, namely R.C. 2151.13, placed Malhotra in the unclassified service.

In relevant part, R.C. 2151.13 provides: “The juvenile judge may appoint such bailiffs, probation

officers, and other employees as are necessary and may designate their titles and fix their duties,

compensation, and expense allowances. * * * Such employees shall serve during the pleasure of

the judge.” (Emphasis added).

       {¶ 9}    As a magistrate, Malhotra was an “other * * * necessary” employee of MCJC.

Therefore, pursuant to R.C. 2151.13, she served “during the pleasure of the judge.” This means

she was an unclassified employee. State ex rel. Hunter v. Summit Cty. Human Resource Comm.,

81 Ohio St.3d 450, 453, 692 N.E.2d 185 (1998) (“Under * * * [R.C.] 2151.13, juvenile court

employees are at-will employees who are unclassified employees * * *. An unclassified employee

is appointed at the discretion of the appointing authority and serves at the pleasure of such

authority.”). Malhotra concedes that the SPBR lacks jurisdiction over appeals by unclassified

employees. See R.C. 124.03(A)(1); Kingsley v. Ohio State Personnel Bd. of Review, 10th Dist.

Franklin No. 10AP-875, 2011-Ohio-2227, ¶ 25 (“SPBR hears appeals of employees when those

employees are in classified state service. SPBR does not have jurisdiction to hear appeals of

employees who are unclassified.”). Therefore, the SPBR properly dismissed her appeal.

       {¶ 10} Contrary to Malhotra’s argument, a trial or remand was not necessary to

determine whether it was practicable for MCJC to hire magistrates through a competitive

examination. By statute, Malhotra was an unclassified employee. The General Assembly

effectively made a policy decision in R.C. 124.11(A)(32) and R.C. 2151.13 that it is not

practicable for juvenile-court employees to be hired by competitive examination. As this court

recognized in Robinson, supra, the purpose of R.C. Chapter 124 is to effectuate the mandate in
                                                                                                                                               7


Section 10, Article XV of the Ohio Constitution that civil-service appointments be made

according to merit and fitness, to be ascertained, as far as practicable, by competitive

examinations. By categorizing some positions as classified and other positions as unclassified,

the General Assembly has satisfied the requirements of Section 10, Article XV.

         {¶ 11} Nor are we convinced by Malhotra’s argument that she actually participated in a

competitive-examination process. In the affidavit the trial court refused to consider, Malhotra

averred that her competitive examination consisted of two rounds of interviews, the second of

which involved the administrative judge. (Malhotra affidavit attached to Doc. #14). We are

unpersuaded that merely being interviewed for a job constitutes a “competitive examination.”

         {¶ 12} In short, the record before the SPBR and the trial court established that Malhotra

was employed by MCJC as a magistrate. By law, she served at the pleasure of the hiring judge

and, therefore, qualified as an unclassified employee under R.C. 124.11(A)(32) and R.C.

2151.13. In light of these determinations, the SPBR plainly lacked jurisdiction over her appeal.

Hunter, 81 Ohio St.3d at 453. That being so, we see no basis whatsoever for a trial or a remand to

the SPBR.2 Malhotra’s first assignment of error is overruled.

         {¶ 13} In her second assignment of error, Malhotra claims the trial court erred in not


            2
               In an administrative appeal from a SPBR order, a trial court may authorize the presentation of additional evidence or hold an
 evidentiary hearing. See R.C. 119.12 (“Unless otherwise provided by law, in the hearing of the appeal, the court is confined to the record as
 certified to it by the agency. Unless otherwise provided by law, the court may grant a request for the admission of additional evidence when
 satisfied that the additional evidence is newly discovered and could not with reasonable diligence have been ascertained prior to the hearing
 before the agency. * * * The hearing in the court of common pleas shall proceed as in the trial of a civil action, and the court shall determine
 the rights of the parties in accordance with the laws applicable to a civil action. At the hearing, counsel may be heard on oral argument, briefs
 may be submitted, and evidence may be introduced if the court has granted a request for the presentation of additional evidence.”). We see no
 purpose for the presentation of additional evidence or a hearing here, however, where the question essentially is one of law based on a few
 uncontested facts.
                                                                                                     8


considering the affidavit attached to the brief she filed. Malhotra asserts that “[t]he trial court in

its decision misstates that during the telephone conference that [she] stated she would not be

introducing evidence in this matter.” (Appellant’s brief at 5). According to Malhotra, she did not

make such a statement. Therefore, she contends the trial court erred in failing to consider her

affidavit.

        {¶ 14} Malhotra’s argument lacks merit for at least two reasons. First, the record

contains no transcript or other recording of the telephone conversation. As a result, we must

presume regularity and accept the trial court’s representation that she declined the opportunity to

submit evidence. On that issue, the record portrays no error. Second, we have reviewed the

affidavit ourselves and find nothing in it that would alter our analysis or the outcome of this

opinion. Therefore, we would find harmless error even if the trial court improperly had failed to

consider the affidavit. Accordingly, the second assignment of error is overruled.

        {¶ 15} In her third assignment of error, Malhotra asserts that the trial court erred in

failing to engage in a de novo review of the pertinent statutory law as well as the Ohio

Constitution. Specifically, she claims (1) that R.C. 2151.13 “is open to more than one

interpretation” and need not be applied to all juvenile-court employees; and (2) that interpreting

R.C. 2151.13 as applying to all employees, including magistrates, violates Section 10, Article XV

of the Ohio Constitution.

        {¶ 16} Neither argument is persuasive. As set forth above, R.C. 2151.13 provides: “The

juvenile judge may appoint such bailiffs, probation officers, and other employees as are

necessary and may designate their titles and fix their duties, compensation, and expense

allowances. * * * Such employees shall serve during the pleasure of the judge.” (Emphasis
                                                                                                  9


added). Malhotra reasons that R.C. 2151.13 should not be read as including magistrates among

the juvenile-court employees who serve at the pleasure of the judge and, therefore, are

unclassified under R.C. 124.11(A)(32). We disagree. In our view, a juvenile-court magistrate

qualifies as an “other * * * necessary” employee under the statute. We see nothing in R.C.

2151.13 indicating that magistrates were intended to be excluded from the statute.

       {¶ 17} We also find no merit in Malhotra’s contention that reading R.C. 2151.13 as

applying to juvenile-court magistrates violates Section 10, Article XV of the Ohio Constitution.

Malhotra notes that the constitutional provision makes an employee’s status as classified or

unclassified dependent on the amenability of his or her position to competitive examination. She

then argues that the position of juvenile-court magistrate is amenable to competitive examination.

Therefore, she reasons that reading R.C. 2151.13 (and R.C. 124.11(A)(32)) as making

juvenile-court magistrates unclassified employees violates the Ohio Constitution. We disagree.

       {¶ 18} As noted above, Section 10, Article XV of the Ohio Constitution provides:

“Appointments and promotions in the civil service of the state, the several counties, and cities,

shall be made according to merit and fitness, to be ascertained, as far as practicable, by

competitive examinations. Laws shall be passed providing for the enforcement of this provision.”

(Emphasis added). A law passed to implement this constitutional provision is R.C. 124.11, which

divides positions into the classified and unclassified service. Pursuant to R.C. 124.11(A)(32), the

unclassified service includes positions made unclassified by another Revised Code section. Here

R.C. 2151.13 made Malhotra’s magistrate position unclassified. Read together R.C.

124.11(A)(32) and R.C. 2151.13 do not violate Section 10, Article XV. Rather, they implement

it. See Robinson at ¶ 23 (recognizing that “R.C. Chapter 124 was enacted to effectuate the civil
                                                                                                  10


service system” created by Section 10, Article XV). In essence, Section 10, Article XV authorizes

the General Assembly to determine which positions are amenable to competitive examination.

Murray v. Civil Service Comm. of Cincinnati, 1st Dist. Hamilton No. C-820738, 1983 WL 5259,

*2 (Oct. 19, 1983) (noting that “[p]ositions in the unclassified service are awarded on the basis of

qualities which the General Assembly has decided cannot be determined by examination”); see

also Springfield Command Officers Assn. v. Springfield City Comm., 62 Ohio App.3d 301, 575

N.E.2d 499 (2d Dist.1990) (“Because Section 10, Article XV specifically provides for civil

service legislation, we presume that when the General Assembly enacted the civil service statutes

* * * it did so pursuant to Section 10, Article XV[.]”). Therefore, we are unpersuaded by

Malhotra’s claim that our (and the trial court’s) reading of R.C. 2151.13 violates the Ohio

Constitution. The third assignment of error is overruled.

       {¶ 19} The judgment of the Montgomery County Common Pleas Court is affirmed.

                                         .............

FAIN and DONOVAN, JJ., concur.




Copies mailed to:

Jonathan A. Ketter
Rajshree Malhotra
Hon. Neal B. Bronson
(sitting for Judge Michael Tucker)
