State ex rel. Sales v. Ohio Pub. Emps. Retirement Bd. (Slip Opinion)

2019 Ohio 1568, 128 N.E.3d 216, 156 Ohio St. 3d 433
CourtOhio Supreme Court
DecidedApril 30, 2019
Docket2017-1589
StatusPublished
Cited by8 cases

This text of 2019 Ohio 1568 (State ex rel. Sales v. Ohio Pub. Emps. Retirement Bd. (Slip Opinion)) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Sales v. Ohio Pub. Emps. Retirement Bd. (Slip Opinion), 2019 Ohio 1568, 128 N.E.3d 216, 156 Ohio St. 3d 433 (Ohio 2019).

Opinion

Per Curiam.

*433 {¶ 1} Appellants, the Ohio Public Employees Retirement Board ("the OPERS board") and the Ohio Department of Rehabilitation and Correction ("ODRC"), *434 appeal the decision of the Tenth District Court of Appeals granting a writ of mandamus compelling the OPERS board to grant appellee, Gary N. Sales, membership status and service credit in the Ohio Public Employees Retirement System ("OPERS"). For the reasons below, we reverse the court of appeals' judgment and deny the writ.

I. Facts and Procedural History

{¶ 2} In July 1995, after the Lucasville prison riots, ODRC entered into a federal consent decree to settle a class-action lawsuit by inmates. Dunn v. Voinovich , S.D. Ohio No. C1-93-0166 (July 11, 1995). The consent decree required, among other *218 things, that ODRC hire "16.15 FTE [full-time equivalent]" psychiatrists to serve the inmate population within three years of the agreement. As part of its effort to comply with the consent decree, ODRC hired Sales to work as a psychiatrist at the Lorain Correctional Institution ("LCI") on July 1, 1997. Sales is a board-certified psychiatrist, addiction psychiatrist, and forensic psychiatrist. He worked at LCI until mid-February 2003.

{¶ 3} His first contract, captioned "Personal Service Contract," identified Sales as "the Independent Contractor" or "the Contractor" and was for a two-year term from July 1997 through June 1999. The contract recited the services Sales was to provide, fixed his hourly rate of compensation, established that he would work 16 hours per week and no more than 8 hours a day, and contained a declaration that "the Contractor * * * is engaged in an independent business." And the contract required Sales to submit "a contract payment form or invoice as appropriate" in order to receive payment.

{¶ 4} The parties later executed a "Contract Addendum" to extend the terms of the initial contract by two years, through June 30, 2001. The parties subsequently signed two one-year contract extensions, under terms similar to those in the 1997 contract. In January 2003, Sales gave written notice of his intent to terminate the contract after the week of February 10, 2003.

{¶ 5} By letter dated February 11, 2014, Sales asked the OPERS board to declare him eligible for membership for his work at LCI. An OPERS employer-compliance specialist reviewed his file and denied his request. The letter denying the request states:

[Y]our position was established with a contract that specifically states Independent Contractor is exempted from all ODRC employee benefits. Your contract was for a specific duration with the option of being renewed. You submitted invoices in order to receive compensation and you received a 1099 for income tax purposes. Additionally, you did not receive fringe *435 benefits such as sick, vacation or insurance, nor were you covered by the employer's Workers' Compensation or Unemployment Compensation.

{¶ 6} Sales appealed the decision. In his appeal letter, he noted that ODRC had provided his office, equipment, and supplies and had required him to clock in and out and work an eight-hour shift.

{¶ 7} On October 3, 2014, OPERS's general counsel affirmed the denial of Sales's application. The general counsel's letter reiterated many of the points made in the first denial letter (the "independent contractor" designation in the contracts, Sales's not having received employee benefits, the contract's requirement that Sales submit invoices in order to be paid). The general counsel's letter stated:

With regard to the provision of equipment/supplies and control/supervision, ODRC has indicated that you were provided with shared office space that was utilized by others when you were not present. Further, your hours were mutually agreed upon, considering the security needs and inmate availability. In summary, while ODRC provided office space, equipment and supplies, all of these factors are appropriate, given the nature of the services that you performed and the environment in which you provided those services.
*219 In summary, ODRC's level of control and supervision does not appear to be excessive, unreasonable or signify the existence of an employer/employee relationship.

(Emphasis sic.) In October 2014, Sales appealed the general counsel's decision to the OPERS board.

{¶ 8} The matter was assigned to a hearing examiner, who conducted an evidentiary hearing on May 8, 2015. On October 28, 2015, the hearing examiner issued a report and recommendation in favor of ODRC. Specifically, he found that Sales had been an independent contractor based on the language of the contracts and his ineligibility for sick leave, vacation leave, and health coverage. Moreover, he found that Sales had been paid at a significantly higher rate than LCI's civil-service-employee psychiatrists had been paid. The hearing examiner found no evidence that ODRC had controlled or supervised Sales "as to the manner of his work" and that he had not been subject to discipline. He gave no weight to the fact that ODRC provided an office, equipment, and supplies for Sales's use, determining that this had been necessary (1) because Sales could meet with his inmate patients only at the institution and (2) for logistical and security reasons. Likewise, the hearing examiner found that other alleged indicia of employment, such as "the issuance of an ID badge, being subjected to sign in/out procedures, and being required to attend periodic orientations or trainings were to educate *436 and update [Sales regarding] the unique culture of the prison system and how to protect [himself] in that environment."

{¶ 9} Sales objected to the report and recommendation. However, on June 15, 2016, the OPERS board accepted the findings and conclusions of the hearing examiner.

{¶ 10} Sales next commenced an action for a writ of mandamus against the OPERS board in the Tenth District Court of Appeals. The court of appeals granted ODRC leave to intervene as a respondent.

{¶ 11} On June 27, 2017, a court-of-appeals magistrate issued a decision recommending that the court not issue a writ of mandamus. With regard to Sales's contention that ODRC controlled the performance of his professional duties, the magistrate found:

[A]ny degree of control exercised by ODRC is not inconsistent with [the] degree of control to be expected in a specialized institutional environment to ensure consistency of care and accommodate the special security concerns when dealing with prison inmate parties.

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Bluebook (online)
2019 Ohio 1568, 128 N.E.3d 216, 156 Ohio St. 3d 433, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-sales-v-ohio-pub-emps-retirement-bd-slip-opinion-ohio-2019.