Hamilton County Board of Mental Retardation & Developmental Disabilities v. Professionals Guild of Ohio

545 N.E.2d 1260, 46 Ohio St. 3d 147, 1989 Ohio LEXIS 270, 132 L.R.R.M. (BNA) 2897

• Court: Ohio Supreme Court
• Decided: October 25, 1989
• Docket: No. 88-1169
• Status: Published

Opinions

Moyer, C.J.

This appeal raises four issues for our disposition.

I

The first issue is whether MRDD is a person under R.C. 119.01(F) and thus a party with the right under R.C. 119.12 to appeal a decision of the State Employment Relations Board.

R.C. 119.12 provides, in pertinent part: “Any party adversely affected by any order of an agency issued pursuant to [an] * * * adjudication may appeal to the court of common pleas of Franklin county * * *.”

“Party” is defined in R.C. 119.01 (G) as “the person whose interests are the subject of an adjudication by an agency.” “Person” is defined in R.C. 119.01(F) as “a person, firm, corporation, association, or partnership.”

R.C. 4117.02(M) provides that “[e]xcept as otherwise specifically provided in this section, [SERB] * * * is subject to Chapter 119. of the Revised Code * * *.”

SERB and the union contend that MRDD is not a person or party within the meaning of R.C. 119.01 and hence has no right to appeal a SERB adjudication order pursuant to R.C. 119.12. We do not agree.

A political subdivision of a state is embraced within the meaning of the word “person” by a statute such as R.C. 119.01(F) defining “person” as including a corporation, association or partnership. See Ohio v. Helvering (1934), 292 U.S. 360, 370. A body corporate and politic is a governmental body or public corporation having powers and duties of government. Uricich v. Kolesar (1936), 132 Ohio St. 115, 118, 7 O.O. 222, 223, 5 N.E. 2d 335, 337; Utah State Bldg. Comm. v. Great American Indemn. Co. (1943), 105 Utah 11, 140 P. 2d 763. Black’s Law Dictionary (5 Ed. 1979) 307, defines “public corporation” as “* * * one created by the state for political purposes and to act as an agency in the administration of civil government, generally within a particular territory or subdivision of the state, and usually invested, for that purpose, with subordinate and local powers of legislation; such as a county, city, town, or school district.”

As we indicated in Uricich, supra, at 118-119, 7 O.O. at 223, 5 N.E. 2d at 337, the word “person” has been applied to counties which are bodies corporate and politic. Thus, an entity qualifying as a body corporate and politic is a “person” as defined in R.C. 119.01(F).

MRDD, as a governmental unit of Hamilton County, is a body corporate and politic and comes within the R.C. 119.01(F) definition of “person.” Thus, it is a party within the meaning of R.C. 119.12. Staples v. Ohio Civ. Serv. Emp. Assn./American Fed. of State, Cty. & Mun. Emp., Local 11, AFL-CIO (1986), 32 Ohio App. 3d 9, 513 N.E. 2d 821.

This court has previously entertained appeals from various state board decisions by local county boards such as MRDD. We have recognized that such appeals may be brought under R.C. 119.12 if the proceedings of the state administrative agency are quasi-judicial in nature. State, ex rel. Bd. of Edn., v. State Bd. of Edn. (1978), 53 Ohio St. 2d 173, 176-177, 7 O.O. 3d 357, 358, 373 N.E. 2d 1238, 1241. In State, ex rel. Bell, v. Cambridge Bd. of Edn. (1976), 45 Ohio St. 2d 316, 318, 74 O.O. 2d 475, 476, 345 N.E. 2d 57, 58, we indicated that the failure of a local school board to avail itself of “its right to appeal the state board’s decision, pursuant to R.C. 119.12 * * *” was grounds for denial of the local school board’s petition for a writ of mandamus.

We thus have recognized, albeit sub silentio, that local county boards such as MRDD are “persons” within the meaning of the R.C. 119.12 appeal provision. This view is reinforced by the recently enacted R.C. 4117.01(A),¹ wherein the General Assembly clearly defined “person” to include a political subdivision.

SERB and the union contend that our decisions in State, ex rel. Osborn, v. Jackson (1976), 46 Ohio St. 2d 41, 75 O.O. 2d 132, 346 N.E. 2d 141, and Thaxton v. Medina City Bd. of Edn. (1986), 21 Ohio St. 3d 56, 21 OBR 357, 488 N.E. 2d 136, require that we hold that MRDD is not a “person” within the meaning of R.C. Chapter 119.

In Osborn, supra, we held that “[t]he director of a state department does not have a right of appeal to the Court of Common Pleas of Franklin County from an order of the State Personnel Board of Review disaffirming the director’s layoff order of an employee for alleged lack of work. (R.C. 119.01 and 119.12.) (Corn v. Bd. of Liquor Control [1953], 160 Ohio St. 9 * * *.)” Id. at paragraph three of the syllabus. Our decision in Osborn, supra, addresses the right of the director of a state agency to bring an appeal under R.C. Chapter 119 and does not apply here.

Nor is our decision in Thaxton, supra, inconsistent with our determination that MRDD is a “person.” We held in Thaxton that “[a] public board of education is not a ‘person,’ as defined in R.C. 1331.01(A), when the board operates within its clear legal authority.” Id. at syllabus. R.C. 1331.01(A)’s definition of “person” applies specifically to the Valentine Act, dealing with monopolies, and is inapplicable here.

For the foregoing reasons, we hold that a county board of mental retardation and developmental disabilities is a “person” entitled to appeal an order of the State Employment Relations Board pursuant to R.C. 119.12.

II

The second issue requires us to determine whether SERB’S access, solicitation, and distribution rules for the rerun election were improperly promulgated because they were adopted in an adjudication process rather than pursuant to SERB’S R.C. 119.03 rule-making authority.

R.C. 119.01(D) defines “adjudication” as “the determination by the highest or ultimate authority of an agency of the rights, duties, privileges, benefits, or legal relationships of a specified person, but does not include * * * acts of a ministerial nature.” The parties do not dispute that SERB’S access, solicitation and distribution rules for the rerun election were issued pursuant to an adjudication. (See, also, our analysis in Part III.)

We have consistently held that the decision whether to proceed by rule making or adjudication to resolve a dispute lies primarily in the informed discretion of the administrative agency. Duff Truck Line, Inc. v. Pub. Util. Comm. (1976), 46 Ohio St. 2d 186, 193, 75 O.O. 2d 229, 233, 348 N.E. 2d 127, 131; Cleveland Freight Lines, Inc. v. Pub. Util. Comm. (1980), 62 Ohio St. 2d 50, 53, 16 O.O. 3d 38, 40, 402 N.E. 2d 1192, 1195; Blue Cross of Northeast Ohio v. Ratchford (1980), 64 Ohio St. 2d 256, 262, 18 O.O. 3d 450, 454, 416 N.E. 2d 614, 619; see, also, Columbia Broadcasting System, Inc. v. United States (1942), 316 U.S. 407, 421; Natl. Labor Relations Bd. v. Beech-Nut Life Savers, Ine. (C.A. 2, 1968), 406 F. 2d 253.

An administrative board has the authority to use either quasi-legislative promulgation of general rules designed to address a general issue or to use a quasi-judicial proceeding when a specific dispute arises as a case before the board. Id. at 257. “To insist upon one form of action to the exclusion of the other is to exalt form over necessity.” Securities & Exchange Comm. v. Chenery Corp. (1947), 332 U.S. 194, 202.

Here, it was within SERB’S discretion to promulgate the rerun election access, solicitation and distribution rules in an adjudication process.

SERB’S decision to resolve, by adjudication, the issues presented by the parties in this case is an administrative judgment entitled to deference by appellate courts. The decision is the product of administrative experience, appreciation of the complexities of the problem, realization of the statutory policies and responsible treatment of the facts. It is the type of judgment which administrative agencies are best equipped to make and for which the administrative process is most appropriate. See Republic Aviation Corp. v. Natl. Labor Relations Bd. (1945), 324 U.S. 793, 800. It is a judgment we should not disturb.

Ill

We next consider whether SERB’S order setting aside the election results and ordering a rerun election is a final appealable order.

MRDD contends that the adjudication language of R.C. 119.12 embraces the “concept of finality” and that the “final order” provision of R.C. 2505.02 is inapplicable to R.C. Chapter 119 proceedings. The implication is that all SERB adjudication orders, whether final or not, are subject to judicial review pursuant to R.C. 119.12. We do not agree.

A litigant has only a statutory, not an inherent, right to appeal a SERB adjudication. See R.C. 119.12. Cf. Avon Lake City School Dist. v. Limbach (1988), 35 Ohio St. 3d 118, 518 N.E. 2d 1190.

We have recognized the general appealability of SERB adjudications pursuant to R.C. 119.12. In South Community, Inc. v. State Emp. Relations Bd. (1988), 38 Ohio St. 3d 224, 226, 527 N.E. 2d 864, 866, we were urged “to limit R.C. Chapter 119’s application solely to rulemaking provisions, and thereby exempt SERB’S adjudications from that chapter’s appeal procedures. * * *” In response, we held that SERB’S adjudications are subject to judicial review pursuant to R.C. 119.12, specifically by R.C. 4117.02(M). Having previously determined that SERB’S adjudications may be appealable under R.C. 119.12, we are now required to determine when the right to appeal arises.

R.C. 119.06 provides that “[n]o adjudication order shall be valid unless an opportunity for a hearing is afforded in accordance with sections 119.01 to 119.13 of the Revised Code. * * *” In State, ex rel. Bd. of Edn. of Bratenahl Local School Dist., v. Bd. of Edn. (1978), 53 Ohio St. 2d 173, 176, 7 O.O. 3d 357, 358, 373 N.E. 2d 1238, 1241, citing Section 4(B), Article IV of the Ohio Constitution, we held that “[bjefore an appeal can successfully be brought to the Court of Common Pleas

* * * under the provisions of R.C. Chapter 119, the proceedings * * * must have been quasi-judicial in nature. * * *” An adjudication order is issued in a quasi-judicial proceeding where, as herein, the parties were given an opportunity for a hearing. State, ex rel. Harris, v. Williams (1985), 18 Ohio St. 3d 198, 201-202, 18 OBR 263, 266, 480 N.E. 2d 471, 473-474; R.C. 119.06.

Having concluded that SERB’S rerun election order is a valid adjudicatory order, the next question is whether the order must be final to be appealable.

R.C. 2505.03(A) provides that “[e]very final order, judgment, or decree of a court and, when provided by law, the final order of any administrative officer, agency, board, department, tribunal, commission, or other instrumentality may be reviewed on appeal by a court of common pleas * * (Emphasis added.)

We have previously held that the finality requirement of R.C. 2505.03 (A) applies to various statutory schemes permitting appeal of orders to the court of common pleas. In Stewart v. Midwestern Indemn. Co. (1989), 45 Ohio St. 3d 124, 543 N.E. 2d 1200, we indicated that R.C. 2711.15, providing for appeal of arbitration proceedings, should be read in pari materia with R.C. 2505.02. See, also, Bellaire City Schools Bd. of Edn. v. Paxton (1979), 59 Ohio St. 2d 65, 13 O.O. 3d 58, 391 N.E. 2d 1021. In Harris, supra, we were faced with the question of whether a letter issued by the Department of Industrial Relations pursuant to R.C. Chapter 4115² advising employees of a company of their right to sue for recovery of unpaid wages is an adjudication vesting the court of appeals with the right of review. We stated there that the letter was not issued pursuant to an adjudication and also was not a final appealable order. Id. at 201, 18 OBR at 266, 480 N.E. 2d at 473. In Ohio Academy of Trial Lawyers v. Dept. of Ins. (1983), 4 Ohio St. 3d 201, 4 OBR 519, 448 N.E. 2d 141, we held that a letter from an attorney-examiner indicating that a hearing was unnecessary did not constitute a final order of an agency issued pursuant to an adjudication as required by R.C. 119.12.

In view of the foregoing, we conclude that SERB orders must comply with R.C. 2505.02 to be appealable.

R.C. 2505.02 defines a “final order” as “[a]n order affecting [1] a substantial right in an action which in effect [2] determines the action and [3] prevents a judgment * * *.” In Bellaire City Schools Bd. of Edn., supra, we indicated that if an order lacks any of these three factors, it cannot be a final order.

The term “substantial right” has been construed to mean a “legal right,” one protected and supported by law. Armstrong v. Herancourt Brewing Co. (1895), 53 Ohio St. 467, 42 N.E. 425. For an order to determine the action and prevent a judgment for the party appealing, it must dispose of the whole merits of the cause or some separate and distinct branch thereof and leave nothing for the determination of the court. Jolley v. Martin Brothers Box Co. (1952), 158 Ohio St. 416, 49 O.O. 29, 109 N.E. 2d 652; Bellaire City Schools Bd. of Edn., supra; see Rossford Exempted Village School Dist. v. State Bd. of Edn. (1989), 45 Ohio St. 3d 356, 544 N.E. 2d 651; Stewart, supra; see, also, Note, What is a Final Order in Ohio (1950), 19 Cin. L. Rev. 507, 509.

Because SERB’S order not only vacated the election result but also provided for a rerun election, it cannot be considered one which “determines the action and prevents a judgment” within the meaning of R.C. 2505.02. Stewart, supra, at 126, 543 N.E. 2d at 1202. We therefore hold that a SERB order mandating a rerun certification election is an interlocutory order and is therefore not appealable pursuant to R.C. 119.12. See Snell v. Cincinnati Street Ry. Co. (1899), 60 Ohio St. 256, 54 N.E. 270; Kennedy v. Chalfin (1974), 38 Ohio St. 2d 85, 67 O.O. 2d 90, 310 N.E. 2d 233; Hermiston v. Emp. Relations Bd. (1977), 280 Ore. 291, 295, 570 P. 2d 663, 665.

IV

Finally, we are required to decide whether SERB may be a party in an appeal of its adjudication order to the court of common pleas.

In DiCillo & Sons, Inc. v. Chester Zoning Bd. of Appeals (1952), 158 Ohio St. 302, 303, 49 O.O. 135, 136, 109 N.E. 2d 8, 9, we were faced with the question of “* * * whether a township board of zoning appeals or any of its members as such have any right to appeal from the judgment of a court, rendered on appeal from a decision of such board * * *.” We held that a statutory grant of a right of appeal to “[a]ny person adversely affected by a decision of a township board of zoning appeals” did not extend to the board or any of its members. Id. at 304-305, 49 O.O. at 136,109 N.E. 2d at 10. Recognizing that the board represents the public’s interest in having appeals correctly heard and decided, we indicated that the availability of sufficient partisan representation of the public interest should be considered in deciding whether to allow the board to participate in the appeal of its decision. Id.

In Gold Coast Realty, Inc. v. Cleveland Bd. of Zoning Appeals (1971), 26 Ohio St. 2d 37, 55 O.O. 2d 20, 268 N.E. 2d 280, it was urged that the city of Cleveland and its commissioner of building could not be parties to the appeal of a board of zoning appeals’ decision because they occupied a governmental position similar to the position of the board. We rejected the contention and held that the city and its commissioner of building could properly appeal from the decision of the common pleas court.

Unlike the township board of zoning appeals in DiCillo which was established for the purpose of hearing appeals,³ SERB, in addition to its quasi-judicial function, is given enforcement powers by R.C. Chapter 4117.

R.C. 4117.13 provides in pertinent part:

“(A) The state employment relations board or the complaining party may petition the court of common pleas for any county wherein an unfair labor practice occurs, or wherein any person charged with the commission of any unfair labor practice resides or transacts business, for the enforcement of the order and for appropriate temporary relief or restraining order. * * * When the board petitions the court, the complaining party may intervene in the case as a matter of right. Upon the filing, the court shall cause notice thereof to be served upon the person charged with committing the unfair labor practice and thereupon has jurisdiction of the proceeding and the question determined therein. * * ‡”

Since any complaint filed under R.C. 119.12 for review of a SERB final adjudication may have to be consolidated with any pending board-initiated enforcement action under R.C. 4117.13, it is reasonable to conclude that the General Assembly viewed SERB as an appropriate parly to the review action. See Maine v. Maine Labor Relations Bd. (Me. 1980), 413 A. 2d 510, 512-513; Public Emp. Relations Comm. v. Orlando (Fla. 1984), 452 So. 2d 517. It is preferable to confer direct party status on SERB on appeal rather than requiring SERB to bring an enforcement action whenever it believes the public interest warrants its participation. Id. at 519.

Sound policy reasons support the recognition of SERB as a party in review proceedings. The union and the employer can be depended upon to advance their own interests, but SERB’S participation ensures that the broad public interest will be adequately represented when necessary. Furthermore, participation in review proceedings complements SERB’S public responsibilities under R.C. Chapter 4117. SERB’S statutory powers and functions make it appropriate to permit it to participate in appeals from its decisions. This is not to say that SERB is a necessary or indispensable party or that it should participate in every review proceeding. See Maine v. Maine Labor Relations Bd., supra, at 513; Barrington School Commt. v. Rhode Island State Labor Relations Bd. (1978), 120 R.I. 470, 475, 388 A. 2d 1369, 1372.

For the foregoing reasons, we hold that SERB may participate as a party in appellate review of its decisions. However, it is not a necessary or indispensable party to the review proceedings.

Judgment affirmed in part and reversed in part.

Holmes and Wright, JJ., concur. H. Brown, J., concurs in the syllabus and judgment. Sweeney, Douglas and Res-nick, JJ., concur in part and dissent in part.

1 R.C. 4117.01(A) provides:

“ ‘Person’ * * * includes * * * employee organizations, public employees, and public employers.” (Emphasis added.)

R.C. 4117.01(B) defines “public employer” as including any political subdivision of the state located entirely within the state.

2 R.C. Chapter 4115 provides a comprehensive statutory procedure for enforcing the prevailing-wage law through administrative and civil proceedings. State v. Buckeye Elec. Co. (1984), 12 Ohio St. 3d 252, 253, 12 OBR 331, 333, 466 N.E. 2d 894, 895.

3 Its powers, as specified in R.C. 519.14, are to hear and decide appeals.